EX-4.1





Exhibit 4.1

 


EQUITYHOLDERS’ AGREEMENT


by and among


[NEWCO CORPORATION,]


[SPRINT,]


[EAGLE RIVER HOLDINGS, LLC,]


[INTEL,]


[COMCAST,]


[GOOGLE INC.,]


[TIME WARNER CABLE,]


and


[BHN SPECTRUM INVESTMENTS, LLC]


Dated as of [                    ], 2008


 

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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS
	 	 	6	 
	 
	 	 	 	 
	ARTICLE 2 CORPORATE GOVERNANCE
	 	 	6	 
	2.1 Board Representation
	 	 	6	 
	2.2 Officers; Chairman of the Board
	 	 	18	 
	2.3 Committees
	 	 	18	 
	2.4 Available Financial Information
	 	 	20	 
	2.5 Access
	 	 	22	 
	2.6 Requirements for Board Action
	 	 	23	 
	2.7 Supermajority Voting Requirements
	 	 	26	 
	2.8 Employee Option Pool
	 	 	28	 
	2.9 Controlled Company
	 	 	29	 
	2.10 Certain Undertakings
	 	 	29	 
	2.11 Subsidiary Governance
	 	 	31	 
	2.12 No Imputed Conflicts
	 	 	31	 
	2.13 Sprint Compliance Certificate
	 	 	31	 
	2.14 Sprint Future Credit Agreements
	 	 	38	 
	2.15 Indemnified Litigation
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 3 TRANSFERS
	 	 	40	 
	3.1 General Limitations on Transfer
	 	 	40	 
	3.2 Certain Permitted Transfers
	 	 	42	 
	3.3 Right of First Offer
	 	 	43	 
	3.4 Tag-Along Rights
	 	 	47	 
	3.5 Preemptive Rights
	 	 	50	 
	3.6 Transfers to a Restricted Entity
	 	 	54	 
	3.7 Standstill Agreement
	 	 	55	 
	3.8 Joint Purchase Rights
	 	 	59	 
	3.9 Permitted Designee
	 	 	61	 
	3.10 Void Transfers
	 	 	62	 
	3.11 Limitations Prior to the Adjustment Date
	 	 	62	 
	3.12 Holding Company Transfers
	 	 	62	 
	 
	 	 	 	 
	ARTICLE 4 MISCELLANEOUS
	 	 	63	 
	4.1 Parent Guaranty
	 	 	64	 
	4.2 Termination
	 	 	64	 
	4.3 Amendments and Waivers
	 	 	64	 
	4.4 Successors, Assigns and Transferees; Groups and Thresholds
	 	 	64	 
	4.5 Legend
	 	 	65	 
	4.6 Notices
	 	 	65	 






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	 	 	Page	 
	4.7 Confidentiality
	 	 	68	 
	4.8 Accounting Policies
	 	 	70	 
	4.9 Strategic Investor Representative; Strategic Investor Agreement
	 	 	70	 
	4.10 No Joint and Several Liability of the Equityholders
	 	 	72	 
	4.11 Further Assurances
	 	 	72	 
	4.12 Entire Agreement
	 	 	72	 
	4.13 Enabling Clause
	 	 	72	 
	4.14 Delays or Omissions
	 	 	72	 
	4.15 Governing Law; Jurisdiction; Waiver of Jury Trial
	 	 	73	 
	4.16 Severability
	 	 	73	 
	4.17 Enforcement
	 	 	73	 
	4.18 No Recourse
	 	 	73	 
	4.19 No Third Party Beneficiaries
	 	 	73	 
	4.20 Counterparts; Facsimile Signatures
	 	 	74	 
	4.21 Interpretation
	 	 	74	 






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Exhibit A – Definitions

Exhibit B – Initial Directors and Officers of the Company

Exhibit C – Terms of D&O Insurance

Exhibit D – Form of Compliance Certificate

Exhibit E – Form of Non-Equityholder Transferee Agreement

Exhibit F – Assignment and Assumption Agreement

Exhibit G – Form of Parent Agreement




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     THIS EQUITYHOLDERS’ AGREEMENT (this “Agreement”) is entered into as of [                    ],
200[  ] (the “Effective Date”), by and among NEWCO CORPORATION, a Delaware corporation (the
“Company”), [SPRINT], a                      (“Sprint”), [EAGLE RIVER HOLDINGS, LLC], a
Washington limited liability company (“Eagle River”), [INTEL], a                     
(“Intel”), [COMCAST], a                      (“Comcast”), [GOOGLE INC.], a Delaware
corporation (“Google”), [TIME WARNER CABLE], a                      (“TWC”), and [BHN
SPECTRUM INVESTMENTS, LLC], a Delaware limited liability company (“BHN”; and, together with
Comcast, Google and TWC, the “Strategic Investors”).1 Each of Sprint, Eagle
River, Intel and each Strategic Investor, together with each of their respective Permitted
Transferees and Permitted Designees (each as hereinafter defined) that becomes a party to this
Agreement in accordance with Article 3, is individually referred to as an “Equityholder”,
and collectively as the “Equityholders.”



RECITALS:




     A. The parties desire to (i) foster the development of a nationwide wireless broadband network
(the “Wireless Broadband Network”); (ii) expedite the commercial availability of wireless
broadband services over the Wireless Broadband Network; (iii) enable the offering of a greater
depth and breadth of wireless broadband services; and (iv) promote wireless broadband development.



     B. In order to satisfy the foregoing objectives, Sprint, Intel, the Strategic Investors and
Clearwire Corporation (“Clearwire”) have entered into the Transaction Agreement and Plan of
Merger (as amended from time to time, the “Transaction Agreement”), under which




     (i) Clearwire formed the Company;




     (ii) the Company formed NewCo LLC (the “LLC”), which was until the Closing
treated as a disregarded entity for U.S. federal income tax purposes;




     (iii) NewCo LLC in turn formed a wholly-owned limited liability company subsidiary,
Clearwire Sub LLC (“Clearwire Sub LLC”) that is and has at all times since its
formation been treated as a disregarded entity for U.S. federal income tax purposes;




     (iv) the outstanding shares of Class B common stock of Clearwire were converted into an
equal number of shares of the Class A common stock of Clearwire in a transaction intended to
qualify as a reorganization within the meaning of Code Section 368(a)(1)(E) and governed by
Code Section 1036;




     (v) Clearwire merged with and into Clearwire Sub LLC in a transaction intended to
qualify as a reorganization under Code Section 368(a)(1)(F) (the “Merger”)





 




			
	1	 	Note: Parties to be updated (and corresponding changes
to be made, if necessary) if Sprint, Intel or a Strategic Investor invests
through more than one entity.




4









 











and, in the Merger, the stockholders of Clearwire exchanged their Class A common stock
of Clearwire for an equal number of shares of Class A Common Stock;




     (vi) in connection with the Merger, the Company was issued Voting Units and Class A
Common Units (both as defined in the Operating Agreement) in accordance with the terms of
the Original Operating Agreement (as defined in the Operating Agreement);




     (vii) Sprint formed a Delaware limited liability company (“Sprint HoldCo LLC”),
which has at all times been treated as a partnership for U.S. federal income tax purposes
and which in turn formed a wholly-owned Delaware limited liability company (“Sprint Sub
LLC”), which is and all times since its formation has been treated as a disregarded
entity for U.S. federal income tax purposes;




     (viii) Sprint caused one or more wholly-owned companies (the “Transfer
Entities”) to hold the Sprint WiMAX Business (as defined in the Transaction Agreement)
and caused all of the Transfer Entities to be limited liability companies treated as
disregarded entities for U.S. federal income tax purposes immediately prior to and as of the
Closing (and the Transfer Entities continue to be treated as disregarded entities for U.S.
federal income tax purposes following the Closing);




     (ix) Sprint and its Subsidiaries contributed all of the limited liability company
interests in each of the Transfer Entities to Sprint HoldCo LLC, which in turn contributed
those interests to Sprint Sub LLC, and Sprint Sub LLC assumed the Sprint Pre-Closing
Financing (as defined in the Transaction Agreement) in accordance with the terms of the
Transaction Agreement;




     (x) following the Merger and the contribution of the Transfer Entities to Sprint Sub
LLC, Sprint caused Sprint HoldCo LLC to contribute all of the limited liability company
interests of Sprint Sub LLC to the LLC (the “Sprint Contribution”) in exchange for
Class B Common Units (as defined in the Operating Agreement) and purchased an equal number
of shares of Class B Common Stock for cash;




     (xi) the Company thereafter contributed the cash it received from Sprint described in
clause (x) above to the LLC in exchange for additional Voting Units;




     (xii) following the Merger and the Sprint Contribution, Intel contributed
$1,000,000,000 in cash to the LLC in exchange for Voting Units and Class B Common Units;




     (xiii) Intel thereafter contributed its Voting Units to the Company in exchange for an
equal number of shares of Class B Common Stock;




     (xiv) following the Merger and the Sprint Contribution, Comcast, TWC and BHN
contributed $1,050,000,000, $550,000,000 and $100,000,000, respectively, in cash to the LLC
in exchange for Voting Units and Class B Common Units;




     (xv) each of Comcast, TWC and BHN thereafter contributed their respective Voting Units
to the Company in exchange for an equal number of shares of Class B



5









 




Common Stock;


     (xvi) following the Merger and the Sprint Contribution, Google contributed $500,000,000
to the Company in exchange for shares of Class A Common Stock;


     (xvii) the Company thereafter contributed the cash it received from Google to the LLC
in exchange for Voting Units and Class A Common Units; and


     (xviii) as a result of the contributions to the LLC by Sprint, Intel, Comcast, TWC and
BHN described in clauses (x), (xii) and (xiv) above, the LLC was converted into a
partnership for U.S. federal income tax purposes, to which partnership the Company, Sprint,
Intel, Comcast, TWC and BHN were treated as contributing assets.


     C. NewCo LLC and Intel have agreed to enter into the Intel Agreement at the Closing to, among
other things, accelerate and facilitate the development of a nationwide mobile wireless broadband
network and devices using WiMAX.


     D. The parties desire to enter into this Agreement to provide for certain rights and
obligations of the Equityholders, and for the management and operation of the Company.


ARTICLE 1


DEFINITIONS


     Capitalized terms used in this Agreement and not otherwise defined in this Agreement have the
meanings specified in Exhibit A.


ARTICLE 2



CORPORATE GOVERNANCE



     2.1 Board Representation.



          (a) The Board will be comprised of 13 Directors, who will be nominated as
follows:



          (i) seven Directors may be nominated by Sprint (the “Sprint
Designees”), except that



          (A) for as long as there are not more than two Independent
Designees, at least one of the Sprint Designees must



          (I) qualify as an Independent Director, and


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     (II) qualify to serve on the Audit Committee, and be
willing to serve on the Audit Committee during his or her
tenure as a Director;




     (B) if, at any time after the Effective Date, Sprint ceases to
have a Percentage Interest equal to at least 50% of its Percentage
Interest as of the Effective Date (as may be adjusted on the
Adjustment Date), then the right of Sprint to nominate Directors will
be reduced to a number equal to the product obtained by multiplying
the Percentage Interest then held by Sprint by 13, rounded to the
nearest whole number (and, for the avoidance of doubt, will be
subject to further adjustment pursuant to this clause (B) as a result
of subsequent changes in Sprint’s Percentage Interest);




     (C) upon and at all times following the occurrence of a Sprint
Adverse Change of Control, then




     (I) the right of Sprint to nominate Directors will be
reduced (if applicable) to a number equal to the lesser of
(x) the product obtained by multiplying the Percentage
Interest then held by Sprint by 13, rounded to the nearest
whole number and (y) six; and




     (II) the right of Sprint to nominate Directors will be
subject to further adjustment in accordance with Section
2.1(a)(i)(B), Section 2.1(a)(vii) and Section 3.8(e)(i);
provided that in no event shall the number of Directors that
Sprint is entitled to nominate upon and after the occurrence
of a Sprint Adverse Change of Control exceed six; and




     (D) subject to clause (C)(II) above, the number of Directors
that Sprint is entitled to nominate may be further adjusted in
accordance with




     (I) clause (vii) of this Section 2.1(a), and




     (II) Section 3.8(e)(i); and




     (ii) one Director may be nominated by Eagle River (the “Eagle River
Designee”), except that




     (A) if, at any time after the Effective Date, Eagle River ceases
to own at least 50% of the Eagle River Original Shares, then Eagle
River will cease to have the right to nominate any Directors; and



7









 






     (B) for as long as Eagle River has the right to nominate a
Director, Eagle River will also have the right to designate one
individual (the “Eagle River Observer”) that will have
Observer Rights subject to the Observer Restrictions; and




     (iii) one Director may be nominated by Intel (the “Intel
Designee”), except that




     (A) if, at any time after the Effective Date, Intel ceases to
have a Percentage Interest equal to at least 50% of its Percentage
Interest as of the Effective Date (as may be adjusted on the
Adjustment Date), then the right of Intel to nominate Directors will
be reduced to a number equal to the product obtained by multiplying
the Percentage Interest then held by Intel by 13, rounded to the
nearest whole number (and, for the avoidance of doubt, will be
subject to further adjustment pursuant to this clause (A) as a result
of subsequent changes in Intel’s Percentage Interest);




     (B) the number of Directors that Intel is entitled to nominate
may be further adjusted in accordance with




     (I) clause (vii) of this Section 2.1(a), and




     (II) Section 3.8(e)(i); and




     (C) for as long as Intel has the right to nominate a Director,
Intel will also have the right to designate one individual (the
“Intel Observer”) that will have Observer Rights subject to
the Observer Restrictions; and




     (iv) two Directors may be nominated by the Strategic Investor Group
(the “Strategic Investor Designees”), except that




     (A) if, at any time after the Effective Date, the Strategic
Investor Group collectively ceases to have a Percentage Interest
equal to at least 50% of its aggregate Percentage Interest as of the
Effective Date (as may be adjusted on the Adjustment Date), then the
right of the Strategic Investor Group to nominate Directors will be
reduced to a number equal to the product obtained by multiplying the
Percentage Interest then held by the Strategic Investor Group, in the
aggregate, by 13, rounded to the nearest whole number (and, for the
avoidance of doubt, will be subject to further adjustment pursuant to
this clause (A) as a result of subsequent changes in the Strategic
Investor Group’s Percentage Interest);



8









 






     (B) the number of Directors that the Strategic Investor Group is
entitled to nominate may be further adjusted in accordance with




     (I) clause (vii) of this Section 2.1(a), and




     (II) Section 3.8(e)(i); and




     (C) for as long as BHN owns a number of shares of Common Stock
equal to at least 50% of the BHN Original Shares, BHN will have the
right to designate one individual that will have Observer Rights
subject to the Observer Restrictions (the “BHN Observer”) and




     (D) for as long as the Strategic Investor Group owns a number of
shares of Common Stock equal to at least 50% of the Strategic
Investor Group’s Original Shares, then the Strategic Investor Group
will have the right to designate one individual that will have
Observer Rights subject to the Observer Restrictions (a
“Strategic Investor Observer”, and collectively with the
Eagle River Observer, the Intel Observer, the BHN Observer and any
individual that has Observer Rights subject to the Observer
Restrictions pursuant to Section 2.1(a)(x)(A), the
“Observers”, and each an “Observer”); provided that,
subject to Section 2.1(a)(x)(A), there will not be, at any given
time, more than one Strategic Investor Observer;




     (v) one Director may be nominated by the unanimous agreement of Intel
and the Strategic Investor Group (“Investor Independent Designee”),
except that




     (A) if, at any time after the Effective Date, the Strategic
Investor Group collectively ceases to have a Percentage Interest
equal to at least 50% of its aggregate Percentage Interest as of the
Effective Date (as may be adjusted on the Adjustment Date), then the
Investor Independent Designee may be nominated by Intel, and if Intel
ceases to have a Percentage Interest equal to at least 50% of its
Percentage Interest as of the Effective Date (as may be adjusted on
the Adjustment Date), the Investor Independent Designee may be
nominated by the Strategic Investor Group, and if both the Strategic
Investor Group and Intel cease to have a Percentage Interest equal to
at least 50% of their respective Percentage Interests as of the
Effective Date (as may be adjusted on the Adjustment Date), then
neither of the Strategic Investor Group nor Intel may nominate an
Investor Independent Designee, and the Director seat will be filled
by an Independent Designee nominated



9









 






by the Nominating Committee in accordance with clause (viii)
below, and




     (B) the Investor Independent Designee must




     (I) qualify as an Independent Director, and




     (II) qualify to serve on the Audit Committee, and be
willing to serve on the Audit Committee during his or her
tenure as a Director;




     (vi) in addition to any Directors to be nominated by the Nominating
Committee as provided in clause (viii) of this Section 2.1(a), one Director
will be nominated by the Nominating Committee (the “Initial Independent
Designee”), except that the Initial Independent Designee must




     (A) qualify as an Independent Director, and




     (B) qualify to serve on the Audit Committee as its chairperson
and be willing to serve on and to be the chairperson of the Audit
Committee during his or her tenure as a Director; and




     (vii) if Sprint Transfers to any other Equityholder(s) (the “25%
Transferee(s)”) a number of shares of Common Stock or Units, as
applicable, equal in the aggregate to at least 25% of Sprint’s Original
Shares or 25% of the Units acquired by Sprint on the Effective Date (as
adjusted for Recapitalization Events) (whether under Section 3.3 of this
Agreement or otherwise), then, if requested by any of the applicable 25%
Transferees (it being understood and agreed that the Strategic Investor
Group as a whole shall be deemed to be a single 25% Transferee for purposes
of this Section 2.1(a)(vii)), the following adjustments will be made as
among Sprint and such 25% Transferee(s) only, without affecting the Board
nomination rights of any other Equityholder:




     (A) the right of Sprint to nominate Directors will be reduced if
the number equal to the product obtained by multiplying the
Percentage Interest then held by Sprint by 13, rounded to the nearest
whole number, is less than the number of Directors that Sprint had
the right to nominate immediately prior to such Transfer, in which
case, Sprint will then have the right to nominate such lesser number
of Directors,




     (B) subject to Section 2.1(a)(x), the right of each such 25%
Transferee to nominate Directors will be increased if the number
equal to the product obtained by multiplying the Percentage Interest
then held by such 25% Transferee by 13,



10









 






rounded to the nearest whole number, is greater than the number
of Directors that such 25% Transferee had the right to nominate
immediately prior to such Transfer, in which case, such 25%
Transferee will then have the right to nominate such greater number
of Directors, and




     (C) from and after the time of such Transfer, the provisions of
Section 2.1(a)(i)(B), Section 2.1(a)(iii)(A) and Section
2.1(a)(iv)(A), as applicable, relating to the proportionate
adjustment of the right to nominate Directors shall apply to Sprint
and the applicable 25% Transferee(s) regardless of whether the 50%
threshold referred to in those Sections has been met.




     (viii) Except as provided in this clause (viii) and in clauses (vii)
above and (x) below, if an Equityholder loses or elects not to exercise (in
whole or in part) the right to nominate all or any portion of its
Equityholder Designees for any reason, the Director seats that the
Equityholder has lost or elects not to exercise the right to nominate will
become additional Independent Directors nominated by the Nominating
Committee (the Initial Independent Designee and each such additional
Independent Director nominated by the Nominating Committee being referred to
herein as an “Independent Designee”); provided that any election by
an Equityholder not to exercise (in whole or in part) the right to nominate
all or any portion of its Equityholder Designees shall not constitute a
permanent waiver or relinquishment of such right; and provided, further,
that if an Equityholder elects not to exercise its right to nominate an
Equityholder Designee, and the seat held by such Equityholder Designee is
filled by an Independent Designee in accordance with the foregoing, the
Equityholder will be entitled to re-exercise its right to nominate a
Director in place of such Independent Designee only upon a vacancy of one of
the seats held by an Independent Designee or at a regularly scheduled
meeting of stockholders at which Directors are elected in accordance with
Section 2.1(b), if applicable.




     (ix) The Initial Independent Designee, one of the Sprint Designees (for
as long as Sprint is required to nominate an Independent Director) and the
Investor Independent Designee (for as long as there is an Investor
Independent Designee) must qualify to serve on the Audit Committee (and be
willing to serve on the Audit Committee during their respective tenures as a
Director) and at least one of the Independent Designees must have the
requisite experience and qualifications to serve as an “audit committee
financial expert” within the meaning of the Exchange Act. If, however,
either Sprint is no longer required to nominate an Independent Director or
there is no longer an Investor Independent Designee, then at least two of
the Independent Designees and either the Investor Independent Designee or
the Sprint Designee that qualifies as an Independent Director (as
applicable) must qualify to serve



11









 






on the Audit Committee (and will agree to do so at the time the
Independent Designees are appointed). If, however, Sprint is no longer
required to nominate an Independent Director and there is no longer an
Investor Independent Designee, then at least three of the Independent
Designees must qualify to serve on the Audit Committee (and will agree to do
so at the time the Independent Designees are appointed).




     (x) If at any time, as a result of any adjustment pursuant to this
Section 2.1(a) or Section 3.8(e)(i), any Equityholder has the right to
nominate a number of Directors that is greater than the number of Available
Seats, the Company and the Equityholders will cooperate to take such actions
as are necessary to reduce (at the next annual or special meeting of the
stockholders of the Company at which Directors are elected) the number of
Independent Designees in order to permit such Equityholder to exercise its
rights under this Section 2.1(a) or Section 3.8(e)(i); provided that there
will be at least three Independent Directors for so long as the Company is
required by Law or the rules of any applicable national securities exchange
to have three Independent Directors. If, following the elimination of the
Independent Designees in accordance with the immediately preceding sentence,
as a result of any adjustment pursuant to this Section 2.1(a) or Section
3.8(e)(i), an Equityholder (for purposes of this Section 2.1(a)(x), a
“Nominating Equityholder”) has the right to nominate a number of
Directors that is greater than the number of Available Seats (such excess
number of seats, “Unfilled Director Seats”), then,




     (A) until (i) the Nominating Equityholder nominates a number of
Equityholder Designees pursuant to Section 2.1(a)(x)(B) equal to the
number of such Nominating Equityholder’s Unfilled Director Seats and
(ii) each such Equityholder Designee that has been so nominated has
been elected or appointed to the Board, the Nominating Equityholder
will have the right, in respect of each of such Nominating
Equityholder’s Unfilled Director Seats, to designate one individual
that will have Observer Rights subject to the Observer Restrictions,
and




     (B) when another Equityholder loses the right to nominate one or
more of its Equityholder Designees under circumstances where the
Board seat would otherwise be filled by an Independent Designee in
accordance with clause (viii) above, in lieu of filling such Board
seat in accordance with clause (viii) above, the Nominating
Equityholder will be entitled to nominate additional Equityholder
Designee(s) to fill each such vacated seat (up to the number of
Unfilled Director Seats of such Nominating
Equityholder); provided that if the Equityholder Designee who is



12









 






being replaced was required to qualify as an Independent Director and
serve on the Audit Committee in accordance with this Section 2.1(a),
then the replacement Equityholder Designee nominated by the
Nominating Equityholder will be required to qualify as an Independent
Director and be willing and qualified to serve on the Audit Committee
until such time as there are at least three other Independent
Directors, for so long as the Company is required by Law or the rules
of any applicable national securities exchange to have three
Independent Directors.




     (xi) The adjustments to Board nomination rights set forth in this
Section 2.1(a) shall be implemented from time to time after the date hereof
based on the relevant circumstances at the time (i.e., adjustments in
nomination rights triggered by one event or circumstance may be further
adjusted based on subsequent events or circumstances). For example, upon
and after the initial adjustment (if any) pursuant to Section 2.1(a)(vii),
the Board nomination rights set forth in this Section 2.1(a) shall be
subject to further adjustment pursuant to Section 2.1(a)(vii) based on any
subsequent change in the Percentage Interests of Sprint and the applicable
25% Transferee(s).




     (xii) For so long as an Equityholder has the right under this Agreement
to designate an Observer, the Observer will be permitted to (A) attend and
observe, but not otherwise participate in, all meetings of the Board (but
not any committees of the Board), and (B) receive (on a concurrent basis)
all notices and other information provided to Directors in their capacity as
Directors by the Company (“Observer Rights”), except that (x) as a
condition to allowing the Observer to attend meetings of the Board or to
receive any information, the Company may require that the Observer execute a
confidentiality agreement, reasonably satisfactory to the Company, with
respect to the information to be provided or the matters to be discussed at
any meeting of the Board; provided, however, that if the Observer is an
employee, agent or independent contractor of the Equityholder appointing
that Observer then in lieu of a separate confidentiality, non-use or
non-disclosure agreement between the Observer and the Company, the
Equityholder agrees to cause the Observer to comply with Section 4.7 and to
be responsible for any breach of such Section by the Observer, and (y) the
Company may exclude the Observer from any meeting of the Board, or portions
thereof, or deny access to any information or portions thereof provided to
Directors, if the Company reasonably determines that the participation of
the Observer, or access to the applicable information, could (1) result in a
waiver of the attorney-client privilege (based on the advice of Company
counsel) with respect to any matters to be discussed or any matters included
in the information to be distributed; (2) expose to an Observer (who
represents or is affiliated
with a competitor to the Company, a customer, supplier or other
business



13









 






partner of the Company or a competitor to the Company’s customers,
suppliers or other business
partners) (A) if a contract or understanding
with any Person or Affiliate of such Person represented by the Observer is
being described, discussed or voted upon, any information related to such
contract or understanding and/or (B) the Company’s business operations,
objectives, opportunities, competitive positioning and/or prospects related
to any such Person or any matter in which such Person may be reasonably
deemed to have an interest that is adverse to the Company; (3) cause the
Company to violate obligations with respect to confidential or proprietary
information of third parties, provided that an Observer shall not be so
excluded unless all other Persons whose participation in such meeting of the
Board, or portions thereof, or receipt of such information, or portions
thereof, would result in a violation of such third party obligations are
also excluded; or (4) pose an actual or potential conflict of interest for
the Equityholder designating the Observer, any of its Affiliates or the
Observer (subsections (x) and (y) collectively “Observer
Restrictions”). In addition, if an Observer designated by an
Equityholder is an observer, employee, officer, director, partner or member
at another company that competes with the Company or is primarily engaged in
a business in a substantially related industry, a majority of those
Directors that are not appointed by the Equityholder appointing the Observer
would be permitted to exclude the Observer from any meeting of the Board, or
portions thereof, or deny access to any information provided to Directors,
if such Directors reasonably determine, in a closed session, to exclude such
Observer to protect the proprietary nature of the information included in
the matters to be discussed and/or distributed.




     (xiii) The Company acknowledges that an Equityholder appointing an
Observer and/or an Observer may likely have, from time to time, information
that may be of interest to the Company (but which excludes any information
that the Observer receives or learns in its position as an Observer)
(“Observer Information”) including, by way of example only,
technologies, plans, services of the applicable Equityholder, strategies
relating thereto, developments with respect to the technologies, products
and services, and plans and strategies relating thereto, of other companies,
including actual or potential competitors of the Company. The Observer
Information may or may not be actually known by the Observer. The Company
agrees that an Equityholder designating an Observer to the Board, merely by
exercising that right of appointing the Observer, and the Observer does not
have any additional duty to disclose any Observer Information to the Company
or offer to the Company the right to participate in projects or investments
based on the Observer Information or otherwise take advantage of any
opportunity that may be of interest to the Company if it were aware of the
Observer Information, and waives, to the extent permitted by law, any claim
based on the corporate opportunity.
The Company will not, to the extent permitted by law, take action to
limit



14









 






the Equityholder’s ability to pursue opportunities based on the
Observer Information or require the Equityholder or Observer to disclose the
Observer Information to the Company solely based on the Equityholder’s
exercise of its right to appoint the Observer.




     (b) The initial Directors and the Observers will be as set forth on Exhibit
B.2 Sprint, Eagle River, Intel and the Strategic Investor
Representative (on behalf of the Strategic Investor Group) will provide the other
Equityholders and the Company with written notice of any changes to their respective
Equityholder Designees in connection with an annual meeting of the stockholders of
the Company at least 90 days before the annual meeting of the stockholders of the
Company at which elections of Directors will be held. Notwithstanding the foregoing
and Section 2.1(a)(viii), the Company and the Equityholders acknowledge and agree
that (A) Intel may elect not to nominate the Intel Designee to begin serving on the
Board as of the Effective Date, (B) Intel shall have until the 180th day
following the Effective Date to nominate the Intel Designee, (C) during such 180-day
period, there will be a vacancy on the Board until such time as Intel nominates the
Intel Designee and (D) if Intel does not nominate the Intel Designee during such
180-day period, then Intel will be deemed to have waived its rights to nominate a
Director until there is a vacancy of one of the seats held by an Independent
Designee or until a regularly scheduled meeting of stockholders at which Directors
are elected in accordance with Section 2.1(b), if applicable, and the Director seat
will be filled in accordance with Section 2.1(a)(viii). Until such time as the
Intel Designee is appointed, the Board may appoint an Independent Designee to any of
the committees on which the Intel Designee was entitled to be a member under this
Agreement.




     (c) The Company and the Equityholders will take whatever actions may be
required under Law to cause the Board to consist of the number of Directors
specified in this Section 2.1.




     (d) At each annual or special meeting of the stockholders of the Company at
which Directors are to be elected, the Company will include in the slate of nominees
recommended by the Board and in the Company’s proxy statement or notice of such
meeting all of the Equityholder Designees and each Independent Designee and will use
its Reasonable Best Efforts to cause the election of each of those designees to the
Board, including nominating those individuals to be elected as Directors as provided
in this Agreement.




     (e) If a vacancy is created at any time by the death, disability, retirement,
resignation or removal (with or without cause) of any Director who is an
Equityholder Designee or Independent Designee, the Company and each
Equityholder will take all actions necessary to cause the vacancy to be filled
as





 




			
	2	 	Exhibit B to be completed prior to Closing.




15









 











soon as practicable by a new Equityholder Designee or Independent Designee, as
the case may be, who is nominated in the manner specified in this Section 2.1. If
the vacancy was created by the death, retirement, disability, resignation or removal
of an Equityholder Designee, and if the applicable Equityholder does not nominate a
replacement Director to fill such vacancy within 90 days following the date of the
vacancy, such Equityholder will be deemed to have waived its rights to nominate a
replacement Director until there is a vacancy of one of the seats held by an
Independent Designee or until a regularly scheduled meeting of stockholders at which
Directors are elected in accordance with Section 2.1(b), if applicable, and the
Director seat will be filled in accordance with Section 2.1(a)(viii). If the
remaining Directors have not, within 30 days following the earlier of (x) in the
case of an Equityholder Designee, the date on which the replacement Director has
been nominated or (y) 90 days after the date of such vacancy, caused (by written
consent or otherwise) the vacancy to be filled by a new Equityholder Designee or
Independent Designee, as applicable, in the manner specified in Section 2.1, then
the Company and each Equityholder will take all actions necessary to fill the
vacancy as provided in this Section 2.1(e).




     (f) Each of the Equityholders will




     (i) vote any Voting Securities owned by it or over which it has the
power to vote (or direct the voting of) and cause its Controlled Affiliates
to vote any Voting Securities, at each annual or special meeting of
stockholders of the Company at which Directors are to be elected, or execute
(or cause to be executed) proxies or written consents with respect to such
Voting Securities, as the case may be, in favor of the election of the
Equityholder Designees and the Independent Designees nominated to the Board
as provided in this Section 2.1, and




     (ii) use its Reasonable Best Efforts to cause the election of the
Equityholder Designees and Independent Designees to the Board, including
nominating those individuals to be elected as members of the Board.




     (g) On the written request of the Equityholder entitled to nominate the
relevant Director, but only upon such written request, each other Equityholder will
vote any Voting Securities owned by it or over which it has the power to vote (or
direct the voting) and will cause its Controlled Affiliates to vote any Voting
Securities, and, together with the Company, take or cause to be taken all actions
necessary, to remove any Director nominated by the requesting Equityholder, and to
elect any replacement Director nominated by that Equityholder (provided that such
replacement Director otherwise meets all of the applicable requirements under
Section 2.1(a)). Subject to Section 2.1(h) and the penultimate sentence of this
Section 2.1(g), unless the Equityholder entitled to nominate the relevant Director
otherwise requests in writing, no Equityholder will take any action to cause the
removal of any Directors nominated by any other Equityholder.
Notwithstanding anything to the contrary in this Agreement, any Director may be



16









 






removed for “cause” by a majority vote of the other Directors. For purposes of this
Section 2.1(g), “cause” shall mean the conviction of the Director of, or the entry
of a pleading of guilty or nolo contendere by the Director to, any crime involving
moral turpitude or any felony.




     (h) If an Equityholder ceases to have the right to nominate one or more
Directors in accordance with this Section 2.1, then, if requested in writing by any
Equityholder holding, or group of Equityholders collectively holding, at least 25%
of the outstanding Voting Securities, that first Equityholder will use Reasonable
Best Efforts to cause the removal or resignation of its applicable Equityholder
Designee(s) at the earliest possible time. If no request is made in accordance with
the preceding sentence, the applicable designee(s) of that Equityholder will serve
the remaining portion of their then-current term and the replacement Director(s)
will be nominated in accordance with this Section 2.1 at the next meeting of the
stockholders at which Directors are elected.




     (i) The Company will compensate each Equityholder Designee who is not an
employee of the Company or any of its Subsidiaries in the same manner and to the
same extent as it compensates its other non-employee Directors and will reimburse
each Equityholder Designee for reasonable out-of-pocket expenses incurred by such
Equityholder Designee for the purpose of attending meetings of the Board or its
committees. If an Equityholder Designee is an employee of an Equityholder or its
Affiliates, the Company will pay the applicable compensation or reimbursement on
behalf of such Equityholder Designee to the applicable Equityholder.




     (j) The Company will obtain and maintain directors’ and officers’ insurance
that meets at least the terms and conditions set forth on Exhibit C. Prior
to the occurrence of a Change of Control (disregarding, for purposes of this Section
2.1(j), the second parenthetical in clause (ii) of the definition of “Change of
Control”) or any merger, consolidation or similar transaction in which the Company
is not the surviving entity, the Company will require that any successor (whether by
merger, operation of law or otherwise) to the Company assume the Company’s
obligations under this Section 2.1(j) for a period of at least six years, except
that in no event will the successor to the Company be required to expend for that
insurance more than an amount per year equal to 200% of the annual premiums paid by
the Company as of the date of the Change of Control transaction. If, but for the
immediately preceding sentence, the successor to the Company would be required to
expend more than 200% of then-current annual premiums, the successor to the Company
would be required to obtain the maximum amount of that insurance obtainable by
payment of annual premiums equal to 200% of the then-current annual premiums.




     (k) The rights of the Equityholders under this Section 2.1 are not Transferable
and may not be exercised by any Transferee, except by a Permitted Transferee or
Permitted Designee of such Equityholder.



17









 




          (l) The Chief Executive Officer of the Company will be entitled to attend all
meetings of the Board regardless of whether or not he or she is a Director, except
that the Chief Executive Officer may be excluded from meetings of the Board when the
Board is in executive session.



     2.2 Officers; Chairman of the Board. The initial Chairman of the Board, Chief Executive
Officer, President (if applicable), Chief Financial Officer, Chief Technology Officer, Chief
Operating Officer, Chief Information Officer, Chief Strategy Officer and General Counsel of the
Company will be as set forth on Exhibit B.3 Subject to the provisions of
Section 2.6(b)(i), changes to any of the foregoing positions will be determined by the Board in
accordance with the Bylaws.



     2.3 Committees.




     (a) The Company will establish an audit committee (the “Audit
Committee”) to perform the duties usually reserved for an audit committee, and
certain other duties, including reviewing and recommending to the full Board (with
related party Directors abstaining from the applicable Board vote) all Related Party
Transactions. The initial members of the Audit Committee will be three or more
Independent Directors, including the Sprint Designee that qualifies as an
Independent Director (for as long as Sprint is required to nominate that Director),
and the Investor Independent Designee (for as long as there is an Investor
Independent Designee). At least one of the Independent Designees on the Audit
Committee will qualify as an “audit committee financial expert” within the meaning
of the Exchange Act, and will chair the Audit Committee. The approval of a majority
of the Audit Committee will be required for the approval of any matter that comes
before the Audit Committee.




     (b) The Company will establish a nominating committee (the “Nominating
Committee”) to perform the functions usually reserved for a nominating
committee, including nominating Independent Designees. The Nominating Committee
will consist of five members, two of whom will be Sprint Designees, one of whom will
be the Eagle River Designee, one of whom will be a Strategic Investor Designee, and
one of whom will be an Intel Designee; provided that (i) no Equityholder or the
Strategic Investor Group, as the case may be, will have any right to designate any
member of the Nominating Committee unless it is also entitled to nominate at least
one Director pursuant to Section 2.1(a) and (ii) on the first date that Sprint’s
right to nominate Directors is actually adjusted downward pursuant Section
2.1(a)(i)(B),2.1(a)(i)(C),2.1(a)(vii), or 3.8(e)(i), Sprint will thereafter have the
right to designate only one Sprint Designee as a member of the Nominating Committee.
In the event that an Equityholder or the Strategic Investor Group, as the case may
be, loses the right to nominate a
member of the Nominating Committee, the open seat(s) on the Nominating





 




			
	3	 	Exhibit B to be completed prior to closing.




18









 











Committee will be filled by one or more Independent Designees. The approval of four
of the five members of the Nominating Committee will be required to nominate any
Independent Designee.




     (c) The Company will establish a compensation committee (the “Compensation
Committee”) to perform the functions usually reserved for a compensation
committee, including




     (i) reviewing and determining salary, bonus and other compensation for
the Chief Executive Officer of the Company and the LLC, and for all
executive officers of the Company and the LLC who report directly to the
Chief Executive Officer (including but not limited to the Chief Operating
Officer, the Chief Financial Officer, the Chief Technology Officer and any
officer determined to be a chief operating decision maker under GAAP), and




     (ii) such other tasks as the Board may from time to time authorize.




The Compensation Committee will consist of four members, one of whom will be a
Sprint Designee, one of whom will be a Strategic Investor Designee, one of whom will
be a Eagle River Designee and one of whom will be the Investor Independent Designee.
If any Equityholder or the Strategic Investor Group, as the case may be, loses the
right to designate any of its designees to the Compensation Committee (which right
will be lost with respect to any designee by virtue of an Equityholder or the
Strategic Investor Group losing its right to nominate at least one Director pursuant
to Section 2.1(a)), then the seat on the Compensation Committee will be filled by
one of the Independent Designees. The approval of two-thirds of the Compensation
Committee will be required to approve the matters described in clauses (i) and (ii)
above, and no other approval of the Board (or any other Committee) will be required
with respect to those matters.




     (d) The Company will establish a special committee (the “Transactions
Committee”) consisting of all Directors other than Sprint Designees who (i) are
employees or directors of Sprint or any of its Controlled Affiliates or (ii) would
not be Independent Directors if they were to sit on the board of directors of Sprint
or any of its Controlled Affiliates (i.e. who are not independent vis-à-vis Sprint).
The Transactions Committee will have the authority to take all actions and make the
determinations referred to in Section 2.13 and Section 2.15.




     (e) Other than the Audit Committee, the
Transactions Committee, the Nominating Committee, the Compensation
Committee and, if the Equityholders agree in accordance with this
Agreement and the Bylaws, an executive committee, the Company will
establish no other committees of the Board, other than those special
committees the Board may create
from time to time, as permitted by the Charter and the
Bylaws, in order to carry out its fiduciary duties (it being
agreed that to the extent that the Board delegates any
authority to a




19











 






committee (including an executive committee), then each of Sprint, Intel, Eagle
River and the Strategic Investor Group will be entitled (but not obligated) to
designate at least one designee to any such committee for so long as it has the
right to nominate at least one Director, unless, in each case, such designation
would, in the good faith determination of a majority of the Independent Directors
(based on the advice of counsel) be inappropriate as a result of an actual or
perceived conflict of interest on the part of such designee, the Equityholder (or
group of Equityholders) designating such designee or any of their respective
Affiliates). Any such designation by Sprint, Intel, Eagle River or the Strategic
Investor Group must be initially made within a reasonable period of time following
receipt of written notification of the formation of such committee.



     2.4 Available Financial Information.




     (a) The Company will deliver, or will cause to be delivered, the following
information to (x) each Strategic Investor for so long as (1) the Strategic Investor
Group has the right to nominate at least one Director under Section 2.1 and (2) such
Strategic Investor has a Percentage Interest equal to at least 2%, or in the case of
BHN, has a Percentage Interest equal to at least 50% of its Percentage Interest as
of the Effective Date (as may be adjusted on the Adjustment Date), and (y) each
other Equityholder for so long as such Equityholder has the right to nominate at
least one Director under Section 2.1:




     (i) as soon as available (and in any event within 90 days) after the
end of each fiscal year of the Company (or the earlier date by which the
information is required to be filed under the Exchange Act),




     (A) (1) the annual financial statements required to be filed by
the Company under the Exchange Act and a reasonably detailed
comparison to the Company’s business plan for that fiscal year as
approved by the Board and certified by the principal financial or
accounting officer of the Company, or (2) if the financial statements
described in (1) are not required to be filed under the Exchange Act,
an audited consolidated balance sheet of the Company and its
Subsidiaries, in each case as of the end of the fiscal year, and
audited consolidated statements of income, retained earnings and cash
flows of the Company and its Subsidiaries for that year, in each case
prepared in accordance with GAAP and setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail and accompanied by the opinion of independent
public accountants of recognized national standing selected by the
Company, and a reasonably detailed comparison to the Company’s
business plan for that year as approved by the Board and certified by
the principal financial or accounting officer of the Company; and



20









 






     (B) with respect to the LLC, an audited consolidated balance
sheet of the LLC and its Subsidiaries, in each case as of the end of
the fiscal year, and audited consolidated statements of income,
retained earnings and cash flows of the LLC and its Subsidiaries for
that year, in each case prepared in accordance with GAAP and setting
forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and accompanied by the opinion
of independent public accountants of recognized national standing
selected by the LLC;




     (ii) as soon as available after the end of the first, second and third
quarterly accounting periods in each fiscal year of the Company and in any
event within 45 days (or the earlier date by which the information is
required to be filed under the Exchange Act),




     (A) (1) the quarterly financial statements required to be filed
by the Company under the Exchange Act and a reasonably detailed
comparison to the Company’s business plan for the current fiscal year
to date as approved by the Board and certified by the principal
financial or accounting officer of the Company, or (2) if the
financial statements described in (1) are not required to be filed
under the Exchange Act, a consolidated balance sheet of the Company
and its Subsidiaries, in each case as of the end of each quarterly
period, and consolidated statements of income, retained earnings and
cash flows of the Company and its Subsidiaries, in each case for that
period and for the current fiscal year to date, in each case prepared
in accordance with GAAP (subject to normal year-end audit
adjustments) and setting forth in comparative form the figures for
the corresponding periods of the previous fiscal year and a
reasonably detailed comparison to the Company’s business plan then in
effect as approved by the Board and certified by the principal
financial or accounting officer of the Company in reasonable detail
and certified by the principal financial or accounting officer of the
Company; and




     (B) with respect to LLC, a consolidated balance sheet of LLC and
its Subsidiaries, in each case as of the end of each quarterly
period, and consolidated statements of income, retained earnings and
cash flows of LLC and its Subsidiaries, in each case for that period
and for the current fiscal year to date, in each case prepared in
accordance with GAAP (subject to normal year-end audit adjustments)
and setting forth in comparative form the figures for the
corresponding periods of the previous fiscal year certified by the
principal financial or accounting officer of LLC;




     (iii) as soon as available and in any event within 45 days after the
end of each fiscal quarter,



21









 




     (A) a consolidated balance sheet and income statement with
budget variances,


     (B) consolidated “key metrics” with budget variances, including
gross adds, net adds, churn, ARPU, CPGA and sites on air, and


     (C) a summary of capital expenditures with budget variances,


provided, however, that the Company may exclude market-specific
information from any such reports; and


(iv) as soon as available, an annual operating budget (with variance
analysis) and strategic plan of the Company and the LLC for the following
fiscal year as approved by the Board.


     (b) The Company covenants and agrees to deliver to (x) a Strategic Investor for
so long as (1) the Strategic Investor Group has the right to nominate at least one
Director under Section 2.1 and (2) such Strategic Investor has a Percentage Interest
equal to at least 2%, or in the case of BHN, has a Percentage Interest equal to at
least 50% of its Percentage Interest as of the Effective Date (as may be adjusted on
the Adjustment Date), and (y) each other Equityholder for as long as such
Equityholder has the right to nominate at least one Director under Section 2.1, in
each case with reasonable promptness, any other information, including data and
reports made available to any lender of the Company or any of its Subsidiaries under
any credit agreement or otherwise, as from time to time may be reasonably requested
by such Strategic Investor or other Equityholder.


     (c) The officers, employees, auditors and contract employees of any
Equityholder receiving or having access to information of the Company under Sections
2.4(a) and (b) will be limited to those officers, employees, auditors and contract
employees of the Equityholder with a need to know such information for the purpose
of evaluating the Equityholder’s equity investment in the Company and the LLC, but,
insofar as such information relates, in each case, to the Company’s retail business,
may not include any officer or employee that is directly responsible for the
day-to-day operations of such Equityholder that are competitive with the business of
the Company and the LLC.


     2.5 Access. 


     (a) The Company will, and will cause its Subsidiaries, officers, directors and
employees to, until an Equityholder no longer has the right to nominate at least one
Director under Section 2.1 (or, in the case of an Equityholder that is a Strategic
Investor, until (x) the Strategic Investor Group no longer has the right to nominate
at least one Director under Section 2.1 and (y) such Strategic Investor has a
Percentage Interest equal to at least 2%, or in the


22








 







case of BHN, has a Percentage Interest equal to at least 50% of its Percentage
Interest as of the Effective Date (as may be adjusted on the Adjustment Date)),




     (i) afford the officers, employees, auditors and contract employees of
that Equityholder and its Controlled Affiliates, during normal business
hours and on reasonable notice, reasonable access to the Company’s and its
Subsidiaries’ officers, employees, properties, offices, plants and other
facilities and to all books and records, and




     (ii) afford that Equityholder the opportunity to discuss the Company’s
and its Subsidiaries’ affairs, finances and accounts with the Company’s and
its Subsidiaries’ officers from time to time as the Equityholder may
reasonably request,




in each event, only to the extent necessary or reasonably appropriate to accomplish
the reasonable purpose of the proposed inspection. If following such discussion the
Equityholder determines that it needs further financial information of the Company
and its Subsidiaries, then the Equityholder will provide a written request of the
same to the chief financial officer of the Company including a description of the
type of information needed from the auditors. The chief financial officer of the
Company will promptly make the request of the Company’s auditors to discuss the
requested issues with the requesting Equityholder.




     (b) The officers, employees, auditors and contract employees of any
Equityholder or its Controlled Affiliates having access rights under Section 2.5(a)
will be limited to those officers, employees, auditors and contract employees of the
Equityholder and its Controlled Affiliates with a need to have the above-described
access rights for the purpose of evaluating the Equityholder’s equity investment in
the Company and the LLC, but, insofar as such access rights provide access to
information that relates, in each case, to the Company’s retail business, may not
include any officer or employee that is directly responsible for the day-to-day
operations of such Equityholder that are competitive with the business of the
Company and the LLC.



     2.6 Requirements for Board Action. 




     (a) In addition to any other actions or approvals required under this
Agreement, Law, the Operating Agreement, the Charter or the Bylaws, the following
actions (including the entry into any agreement, contract or commitment to take any
such action) will require the prior approval of a Simple Majority of the
disinterested Directors:




     (i) any Related Party Transaction, and




     (ii) any Transfer of Equity Securities by the Principal Equityholder,
whether as part of a single transaction or a series of related



23









 







transactions, that constitutes a Change of Control of the Company or
any of its material Subsidiaries, except that for purposes of this clause
(ii), any failure of the disinterested Directors to vote against the
proposed Transfer within 30 days following the receipt by the Company of
written notice of the Transfer will be deemed to be an approval of the
Transfer.




     (b) In addition to any other actions or approvals required under this
Agreement, the Operating Agreement, Law, the Charter or the Bylaws, the following
actions (including the entry into any agreement, contract or commitment to take any
such action) by the Company or any of its Subsidiaries will require the prior
approval of at least 10 Directors (or, if there are fewer than 10 Directors, all of
such Directors):




     (i) the appointment or removal of the Chief Executive Officer of the
Company and the LLC, and the appointment or removal of all executive
officers of the Company and the LLC who report directly to the Chief
Executive Officer (including but not limited to the Chief Operating Officer,
the Chief Financial Officer, the Chief Technology Officer and any officer
determined to be a chief operating decision maker under GAAP); provided that
the foregoing approval rights with respect to the removal of executive
officers of the Company and the LLC who report directly to the Chief
Executive Officer will not apply if Sprint owns less than 50% of the
outstanding Voting Securities and has the right to nominate less than a
majority of the Directors;




     (ii) the Company or any Subsidiary of the Company engaging in:




     (A) a joint venture with any Person that involves a contribution
by the Company or any Subsidiary of the Company to the joint venture
entity of assets with a book value in excess of 20% of the book value
of the consolidated assets of the Company and its Subsidiaries, as
reflected in the most recent audited financial statements of the
Company and its Subsidiaries;




     (B) an acquisition of any assets (including stock or other
equity interests) in a transaction or series of related transactions
that have an aggregate purchase price in excess of 20% of the book
value of the consolidated assets of the Company and its Subsidiaries,
as reflected in the most recent audited financial statements of the
Company and its Subsidiaries; or




     (C) a disposition of any assets of the Company or any Subsidiary
of the Company (including stock or other equity interests) in a
transaction or series of related transactions that have an aggregate
purchase price in excess of 20% of the book value of the consolidated
assets of the Company and its Subsidiaries, as



24









 







reflected in the most recent audited financial statements of the
Company and its Subsidiaries;


except that the approval required under this Section 2.6(b)(ii) will not be required for any
transaction that qualifies as a Related Party Transaction (it being understood that Related Party
Transactions are to be addressed as set forth in Section 2.6(a));





     (iii) engaging in or undertaking any business activities approved by
the Board under clause (iv) of the definition of the Business Purpose of the
Company;




     (iv) funding any of the following:




     (A) any business activities outside the United States other than
funding as and to the extent necessary to maintain the Company’s
existing operations and assets located outside of the United States;
or




     (B) any acquisition of spectrum (whether by purchase, lease or
license) outside the United States; or




     (C) any expansion of the Business Purpose of the Company under
clause (iv) of the definition thereof that is not conducted through
the LLC or its Subsidiaries; and




     (v) any Change of Control of the Company or any of its Subsidiaries
(other than in connection with a transaction that constitutes a Related
Party Transaction) (it being understood that Related Party Transactions are
to be addressed as set forth in Section 2.6(a)).




     (c) In addition to any other actions or approvals required under this
Agreement, the Operating Agreement, Law, the Charter or the Bylaws, any amendment to
the Operating Agreement will require the prior approval of a majority of the
Directors who are Independent Designee(s) and Independent Directors nominated by one
or more Equityholders other than those Independent Directors that are current or
former directors, officers or employees of a nominating Equityholder.




     (d) Notwithstanding anything to the contrary in this Agreement,




     (i) a Simple Majority of the Board (excluding the interested Directors)
shall have the right to direct, enforce and control on behalf of any NewCo
Indemnified Person (as such term is defined in the Transaction Agreement)
the prosecution of any action in respect of which indemnity may be sought
against any Equityholder or any of its Affiliates under Article 13 of the
Transaction Agreement (including the



25









 







determination as to whether to assert any claim, commence any action or
settle, dismiss or continue the prosecution of any such action); and




     (ii) For purposes of Section 1.2(c) of the Transaction Agreement, (A)
all action taken by the Company or the LLC shall be determined and directed
by the senior management of the Company unless such action requires approval
from the Board, in which case such action shall be determined and directed
by the members of the Board other than the Sprint Designees and (B) the
Sprint Designees will recuse themselves from all consideration of these
matters.



     2.7 Supermajority Voting Requirements.




     (a) In addition to any other actions or approvals required under this
Agreement, Law, the Operating Agreement, the Charter or the Bylaws, the following
actions (including the entry into any agreement, contract or commitment to take any
such action) by the Company or any of its Subsidiaries will require the approval of
each of Sprint, Intel, and the Strategic Investor Representative on behalf of the
Strategic Investor Group so long as Sprint, Intel or the Strategic Investor Group,
respectively, has a Percentage Interest of at least 5%.




     (i) any amendment to the Bylaws (other than amendments that are
ministerial in nature and do not directly or indirectly adversely affect the
rights of the Equityholders), the Charter or the Operating Agreement;




     (ii) changing the size of the Board from the size contemplated by
Section 2.1(a);




     (iii) any Bankruptcy of the Company or any material Subsidiary of the
Company;




     (iv) any material capital restructuring or reorganization of the
Company or any material Subsidiary of the Company, except that the foregoing
will not include any financing transaction of the Company or its
Subsidiaries in the ordinary course of business (including a public or
private issuance of any debt or equity securities in the ordinary course of
business);




     (v) the liquidation, dissolution or winding up of the Company or the
LLC;




     (vi) any conversion, election or other action of or affecting the LLC
or any material Subsidiary of the LLC that would cause any such entity to be
taxed as a corporation for U.S. federal income tax purposes; and



26









 






     (vii) any issuance, or entry into any agreement to issue or otherwise
obligate the Company or the LLC to issue, after the Effective Date of this
Agreement, shares of Class B Common Stock or Class B Common Units, other
than (A) in connection with a Recapitalization Event or as required under
the Transaction Agreement or (B) shares of Class B Common Stock issued to
Sprint under Section 2.13(e) or (f).




     (b) The actions described in clauses (i) and (ii) of Section 2.7(a) will also
require the approval of Eagle River if




     (i) Eagle River and its Permitted Transferees own at least 50% of the
Eagle River Original Shares, and




     (ii) the action in question would uniquely or disproportionately
adversely affect Eagle River or the public stockholders of the Company, or
the Company as a Member of the LLC, in any material respect as compared to
the impact of the action on Sprint, Intel and the Strategic Investors as
stockholders of the Company and members of the LLC.




     (c) In addition to any other action or approval required under this Agreement,
the Operating Agreement, Law, the Charter or the Bylaws, the written approval of the
applicable Consenting Equityholder(s) (as defined below) will be required for the
following actions (including the entry into any agreement, contract or commitment to
take any such action):




     (i) any transaction (or series of related transactions) that would
result in the sale or other transfer of more than the Specified Percentage
of the consolidated assets of the Company and its Subsidiaries, as reflected
in the most recent audited financial statements of the Company and its
Subsidiaries, to any Restricted Entity of the applicable Consenting
Equityholder(s), or




     (ii) any merger, consolidation, share exchange, recapitalization,
business combination or other similar transaction or issuance of capital
stock of the Company or any of its Subsidiaries with or to a Restricted
Entity of the applicable Consenting Equityholder(s) that constitutes a
Change of Control of the Company or any of its Subsidiaries.


For purposes of this Section 2.7(c) and Section 3.6, a “Consenting Equityholder” means, at
any time, each of Sprint, Intel and the Strategic Investor Group if, at the applicable time, such
Equityholder (or the Strategic Investor Group, as the case may be):





     (x) owns a number of shares of Common Stock equal, in the aggregate, to at least 50% of
its Original Shares, and




     (y) holds an aggregate Percentage Interest of at least 5%.



27









 






     (d) The approval of the holders of at least 75% of the outstanding Voting
Securities of the Company will be required to approve (i) any merger, consolidation,
share exchange, recapitalization, business combination or other similar transaction
involving the Company or the LLC, (ii) any issuance of capital stock of the Company
or the LLC, in either case that constitutes a Change of Control of the Company or
the LLC or (iii) any sale or other disposition of all or substantially all of the
assets of the Company or of the LLC.




     (e) If the Board proposes that the Company or any of its Subsidiaries take any
action that requires the approval of Sprint, Intel, Eagle River, or the Strategic
Investor Group (or any combination of those Equityholders) under Section 2.7, the
Company will send a written notice to the Equityholders (including to the Strategic
Investor Representative on behalf of the Strategic Investor Group) whose approval or
waiver would be required (the “Approval Equityholders”), which notice will
include a reasonably detailed description of the action proposed. If none of the
Approval Equityholders delivers to the Company a written notice of objection to the
taking of such action within 30 days of the notice date, then such action will be
deemed approved. If any of the Approval Equityholders timely delivers a written
notice of objection, then, as soon as reasonably practicable after delivery of such
notice (and in any event within 30 days thereafter), the chief executive officers of
the Approval Equityholders (which, at the election of the Strategic Investor Group,
may include the chief executive officer of each of the Strategic Investors or the
chief executive officer of the Strategic Investor Representative) and the Company
will meet to discuss the proposed action (either in person or, if agreed by all the
Approval Equityholders, by teleconference), and whether the action should be
approved. If the chief executive officers of the Approval Equityholders and the
Company unanimously determine in writing that the action should be taken, the matter
will be deemed to have been approved by the Equityholders as required under Section
2.7.



     2.8 Employee Option Pool. The Company will take all necessary action to reserve up to
80,000,000 shares of Class A Common Stock (as adjusted for Recapitalization Events) for issuance of
Equity Securities and options to purchase Equity Securities to officers, directors, consultants and
employees of the Company or any of its Subsidiaries under an initial Incentive Plan (including
options that have been issued as of the date hereof) as soon as reasonably practicable after the
consummation of the transactions contemplated by the Transaction Agreement (it being understood
that any issuance of Equity Securities or options to purchase Equity Securities to officers,
directors, consultants or employees of the Company or any of its Subsidiaries will require the
approval of the Board or the Compensation Committee). Each Equityholder will vote all of its
Equity Securities in favor of any Incentive Plan pursuant to which the Company has reserved or will
reserve shares of Class A Common Stock that is submitted to a vote of the stockholders of the
Company if such Incentive Plan does not provide for possible issuances of Class A Common Stock,
together with possible issuances of Class A Common Stock under all other Incentive Plans then in
place (excluding any Incentive Plans in effect prior to the Effective Date and
assumed by the Company as part of the Merger) (in each



28









 







case, as adjusted for Recapitalization
Events), in excess of the amounts described in the first sentence of this Section 2.8. The Company
may, from time to time thereafter, reserve additional shares of Class A Common Stock under
subsequent Incentive Plans.



     2.9 Controlled Company.




     (a) The Equityholders agree and acknowledge that,




     (i) by virtue of this Agreement, they are acting as a “group” within
the meaning of the NASDAQ rules, and




     (ii) by virtue of the combined Percentage Interest of the Equityholders
of more than 50%, the Company qualifies as a “controlled company” within the
meaning of the NASDAQ rules.




     (b) For so long as the Company qualifies as a controlled company for purposes
of NASDAQ, the Company will elect to be a controlled company for purposes of NASDAQ,
and will disclose in its annual meeting proxy statement that it is a controlled
company and the basis for that determination. If the Company ceases to qualify as a
controlled company for purposes of NASDAQ, the Equityholders and the Company will
take whatever action may be reasonably necessary, if any, to cause the Company to
comply with the NASDAQ rules as then in effect.




     (c) If an Equityholder ceases to have the right to (i) nominate one or more
Directors in accordance with Section 2.1, (ii) approve certain actions by the
Company and its Subsidiaries pursuant to Section 2.7, (iii) participate as a
Non-Selling Equityholder in the right of first offer pursuant to Section 3.3, (iv)
preemptive rights pursuant to Section 3.5 and (v) qualify as a Consenting
Equityholder pursuant to Section 2.7(c) (a “Non-Qualifying Equityholder”),
the Company and the remaining Equityholders agree to use Reasonable Best Efforts to
take whatever action may be reasonably necessary, including any filings under the
Exchange Act, to cause such Non-Qualifying Equityholder to no longer constitute part
of the “group” referred to in Section 2.9(a) above. For purposes of this Section
2.9(c), if the Non-Qualifying Equityholder is a Strategic Investor, the Strategic
Investor Representative will promptly notify the Company and the remaining
Equityholders if and when any Strategic Investor becomes a Non-Qualifying
Equityholder.



     2.10 Certain Undertakings. 




     (a) The Equityholders and the Company agree that the initial three-year
business plan of the Company and the LLC will not contemplate the formation of an
enterprise sales force. During the three-year period following the Effective Date,
the Company and its Subsidiaries will promptly refer to Sprint any opportunities
that they become aware of for the sale of Wireless Broadband
Products and Services to the most recently published Fortune 1000 companies



29









 







(the “Fortune 1000 Companies”); provided, that if a Fortune 1000 Company
directly approaches the Company or the LLC to obtain services of the Wireless
Broadband Network or other services sold by the Company or the LLC, then nothing in
this Section 2.10(a) will preclude the Company or the LLC from making such sales
directly so long as it also makes the referral to Sprint. Sprint and the Company
will, from time to time, meet with respect to certain Fortune 1000 Companies and
discuss in good faith opportunities where it may make sense for the Company or the
LLC to service a particular account (e.g. regional headquarters). The Company and
Sprint will each designate a contact point and use a mutually agreeable form and
process for handling referrals. Sprint will appoint at least one representative to
be responsible for handling the Sprint sales effort to the Fortune 1000 Companies.
Sprint’s right to continue to be the primary enterprise sales force selling services
on the Wireless Broadband Network to the Fortune 1000 Companies after the initial
three-year period shall be subject to the mutual agreement of the Company and
Sprint. Nothing in this Section 2.10(a) will preclude or affect the ability of any
Person that is a party to a wholesale or MVNO agreement with the Company from
marketing, promoting or selling the services of the Wireless Broadband Network to
the Fortune 1000 Companies as long as such agreement is on customary, arms length
terms and neither the Company nor any of its Subsidiaries owns any equity in such
Person or is entitled to any revenue share or profit share on such sales, provided
that no action taken by any Strategic Investor, Intel or any of their respective
Affiliates shall be deemed to violate this Section 2.10(a).




     (b) The Company will develop and implement procedures and safeguards,
particularly with respect to access to competitively sensitive information, to
ensure compliance with applicable antitrust Laws. No Equityholder will nominate a
Person as its Equityholder Designee if the participation of that Person would
violate any Law, including any antitrust Law.




     (c) The Company will include in each of its annual Forms 10-K filed under the
Exchange Act a reasonably detailed description of the provisions of the Charter and
the Operating Agreement relating to limitations on fiduciary duties (including the
allocation of corporate opportunities between the Founding Stockholders (as such
term is defined in the Charter) and Members (as such term is defined in the
Operating Agreement), on the one hand, and the Company and the LLC, on the other
hand), together with a separate risk factor describing the material risks posed to
the Company’s stockholders relating to such limitation on fiduciary duties, in each
case, for so long as such provisions are in effect.




     (d) Determinations by the Company to take or initiate actions to enforce this
Agreement against any Equityholder, as well as determinations regarding the manner
in which any such actions are taken, will be made:




     (i) if there are fewer than three Independent Designees on the Board at
the time any such determination is made, by the approval of a



30









 







majority of the Independent Directors, including the approval of at
least one of the Independent Designees; or




     (ii) if there are at least three Independent Designees on the Board at
the time a decision is made, by the approval of a majority of the
Independent Designees.



     2.11 Subsidiary Governance. Subject to Section 2.15, if any Person other than an officer
or employee of the Company or any of its Subsidiaries is a member of the board of directors (or
equivalent governing body) of any Subsidiary of the Company, then, upon the request of any
Equityholder that is then entitled to nominate at least one Director (or upon the request of the
Strategic Investor Representative if the Strategic Investor Group is entitled to nominate at least
one Director), the board of directors (or equivalent governing body) of any or all of the
Subsidiaries of the Company will be comprised of the individuals who are serving as Directors on
the Board in accordance with Section 2.1 (or designees of such Directors), in which event the
provisions of Section 2.1 and Section 2.3 will apply mutatis mutandis to each Subsidiary of the
Company; provided that, in the case of any non-wholly-owned Subsidiaries of the Company, upon any
such request, the Company will use its commercially reasonable efforts to replicate, to the extent
practicable, the governance arrangements set forth in Section 2.1 and Section 2.3 with respect to
any actions or decisions to be taken or made by the Company with respect to such Subsidiary.



     2.12 No Imputed Conflicts. For the avoidance of doubt, (a) the fact that any Strategic
Investor is “interested” with respect to any particular transaction or other matter will not,
without more, render (i) any Strategic Investor Designee that was nominated by any other Strategic
Investor or (ii) any other Strategic Investor or the Strategic Investor Group as a whole
“interested” with respect to such transaction or other matter and will not, without more, cause
such other Strategic Investor Designee or any other Strategic Investor or the Strategic Investor
Group as a whole to be a “related party” of the interested Strategic Investor, (b) the fact that
any Equityholder is “interested” with respect to any particular transaction or other matter will
not, without more, render the Independent Director, if any, nominated by such Equityholder (or the
Strategic Investor Group) “interested” or a “related party” with respect to such transaction or
other matter or a “related party” of the interested Equityholder and (c) the fact that any
Equityholder has rights as a Non-Initiating Equityholder under Section 3.8, or exercises such
rights, will not, without more, render (i) the Equityholder Designees of such Equityholder (or the
Strategic Investor Group) or (ii) such Equityholder (in its capacity as a stockholder of the
Company) “interested” with respect to the consideration of any proposal for a Qualifying Purchase.
Notwithstanding the above, the Board may, in the exercise of its fiduciary duties and taking into
account such factors as it may deem appropriate, determine that a Director that is an affiliate or
employee of a Strategic Investor or Equityholder is “interested” with respect to a particular
transaction or other matter in which such Strategic Investor or Equityholder is a party.



     2.13 Sprint Compliance Certificate. 




     (a) If the Company or any of its Subsidiaries proposes to incur any
Indebtedness or take any other action which may be subject to restriction (whether
directly or indirectly, including as a result of a cross-default or
cross-acceleration



31









 







provision) under any Sprint Senior Debt Agreement, the Chief
Executive Officer or Chief Financial Officer of the Company will notify Sprint in
writing (the “Compliance Notice”). The Compliance Notice will include a
brief description of the proposed Indebtedness or other action, including, as
applicable, the amount of Indebtedness that will be incurred or other action taken,
a description of any security being given, the proposed closing date or date such
other action will be taken and any other material terms and conditions of the
proposed Indebtedness or other action that are known at the time the notice is
given. Except as provided in the remainder of this subsection (a), the notice will
be given no later than completion of a term sheet, letter of intent, or similar
pre-definitive document summary of material terms of such Indebtedness or other
action. If the Company proposes to enter into a revolving line of credit (a
“Revolver”), the Company will deliver a Compliance Notice with respect to
the Revolver and will deliver a written notice (a “Revolver Quarterly
Notice”) not more than 90 days nor less than 60 days prior to the commencement
of each calendar quarter during which amounts are available to be borrowed under a
Revolver indicating the Company’s good faith estimate of the total amount of draws
that the Company intends to make on each outstanding Revolver during such calendar
quarter. The Company will provide Sprint with drafts of definitive agreements of
the Company’s proposed Indebtedness or other action as the drafts are prepared.
Nothing in the immediately preceding sentence will be deemed to limit (i) the
Company’s obligation to deliver a Modification Notice (as defined below) if and when
appropriate or (ii) Sprint’s obligation to deliver a Compliance Certificate (as
defined below) to the Company.




     (b) Within ten days following its receipt of the Compliance Notice or a
Revolver Quarterly Notice, Sprint will notify the Company in writing as to whether
Sprint will be able to deliver a compliance certificate substantially in the form
attached as Exhibit D (the “Compliance Certificate”) from its Chief
Executive Officer or Chief Financial Officer (together with the legal opinion
contemplated by Section 2.13(h)) at the closing of the funding of the proposed
Indebtedness or the date such other action described in the Compliance Notice will
be taken or with respect to the anticipated borrowing under the Revolver as
specified in the Revolver Quarterly Notice. If Sprint notifies the Company that it
will be able to deliver a Compliance Certificate (together with the legal opinion
contemplated by Section 2.13(h)), the decision to proceed on the proposed
Indebtedness or other action will be subject to the approval of a Simple Majority of
the Board (except as otherwise provided in this Agreement and the LLC Operating
Agreement). If the Company elects to proceed with the proposed Indebtedness or
other action on the terms set forth in the Compliance Notice, Sprint will deliver a
Compliance Certificate (together with the legal opinion contemplated by Section
2.13(h)) at the closing of the funding of the proposed Indebtedness or the date such
other action is taken and on the first Business Day
of any calendar quarter as to which a Revolver Quarterly Notice is given. If,
notwithstanding the foregoing, Sprint determines due to changed circumstances (other
than a Modification Notice) prior to the date on which such documents are



32









 







required to be delivered that it will not be able to deliver the Compliance Certificate (or
the legal opinion contemplated by Section 2.13(h)) without taking further action as
contemplated by Section 2.13(d) below, Sprint will promptly notify the Company in
writing; provided that delivery of that notice will not affect Sprint’s obligation
to deliver the Compliance Certificate with the legal opinion contemplated by Section
2.13(h) in accordance with this Section 2.13(b). If Sprint fails to deliver a
Compliance Certificate or the legal opinion contemplated by Section 2.13(h) on the
date on which such documents are required to be delivered, then the Company, by
majority vote of the Transactions Committee, may elect to cause Sprint and its
Permitted Designees and Permitted Transferees to take any of the actions specified
in Section 2.13(d) below to the extent determined by the Transactions Committee in
good faith to be reasonably necessary to permit (x) the applicable proposed
Indebtedness or other action to be consummated without violating, conflicting with,
causing a default or event of default under or resulting in the imposition of a lien
on the assets or property of the Company under, any of the covenants under the
Sprint Senior Debt Agreements and (y) the delivery by Sprint of a Compliance
Certificate and the rendering of the legal opinion contemplated by Section 2.13(h).
If the Company makes such an election then Sprint promptly will take any action so
directed by the Company, and the Company will use Reasonable Best Efforts to take
whatever action is necessary to implement the action(s) taken by Sprint, and, if an
amendment to this Agreement is reasonably requested by Sprint to implement such
action(s), the Company and the remaining Equityholders will so amend this Agreement
as long as they are not adversely affected by the amendment.




     (c) If, in response to the Compliance Notice or Revolver Quarterly Notice,
Sprint notifies the Company that Sprint is not then able to commit to deliver a
Compliance Certificate or the legal opinion contemplated by Section 2.13(h) on the
date on which such documents are required to be delivered or Sprint notifies the
Company that due to changed circumstances (other than a Modification Notice) prior
to the date on which such documents are required to be delivered that it will not be
able to deliver the Compliance Certificate and the legal opinion contemplated by
Section 2.13(h) without taking further action as contemplated by Section 2.13(d)
below (each as described in Section 2.13(b) above), then




     (i) the determination of the Company whether to proceed with the
proposed Indebtedness or other action will be made by Company management and
the Transactions Committee,




     (ii) if the Transactions Committee determines that the Company should
proceed with the proposed Indebtedness or other action (and any other
approvals required under this Agreement and the LLC Operating Agreement have
been obtained), then notwithstanding the
proposed closing date or date such other action is to be taken as set
forth in the Compliance Notice, the Company may proceed with the proposed
Indebtedness or other action, but will not close on the proposed



33









 







Indebtedness or take such other action for at least 90 days following the
date of the Compliance Notice,




     (iii) the Company will notify Sprint in writing of the new proposed
closing date or date such other action is to be taken (if such date will be
other than what is set forth in the Compliance Notice), and




     (iv) Sprint will take all steps necessary to be able to deliver, and
subject to its rights under Section 2.13(d) will deliver, a Compliance
Certificate (together with the legal opinion contemplated by Section
2.13(h)) at the closing of the funding of the proposed Indebtedness or other
action. If Sprint fails to deliver a Compliance Certificate (or legal
opinion contemplated by Section 2.13(h)) on the proposed closing date of the
funding of the proposed Indebtedness or on the date such other action is
taken or on the first Business Day of any calendar quarter as to which a
Revolver Quarterly Notice is given, then the Company, by majority vote of
the Transactions Committee, may elect to cause Sprint and its Permitted
Designees and Permitted Transferees to take any of the actions specified in
Section 2.13(d) below to the extent determined by the Transactions Committee
in good faith to be reasonably necessary to permit (x) the applicable
proposed Indebtedness or other action to be consummated without violating,
conflicting with, causing a default or event of default under or resulting
in the imposition of a lien on the assets or property of the Company under,
any of the covenants under the Sprint Senior Debt Agreements and (y) the
delivery by Sprint of a Compliance Certificate and the rendering of the
legal opinion contemplated by Section 2.13(h). If the Company makes such an
election then Sprint and its Permitted Designees and Permitted Transferees
promptly will take any action so directed by the Company and the Company
will use Reasonable Best Efforts to take whatever action is necessary to
implement the action(s) taken by Sprint, and, if an amendment to this
Agreement is reasonably requested by Sprint to implement such action(s), the
Company and the remaining Equityholders will so amend this Agreement as long
as they are not adversely affected by the amendment.




     (d) In connection with its obligations under Sections 2.13(b) and (c) above,
Sprint may elect to take, and cause the Company to take, or as permitted by Section
2.13(b) or (c) above, the Company may cause Sprint to take, one or more of the
following actions, immediately on the written request of Sprint to the Company and
the remaining Equityholders (or the Company to Sprint, if the Company is requiring
the actions to be taken), and the Company will take all steps necessary to cause any
of the following actions to occur (and, if an amendment to this Agreement is
reasonably requested by Sprint to implement such action(s), the Company and the
remaining Equityholders will so amend this
Agreement as long as they are not adversely affected by the amendment) as soon
as is reasonably practicable (but in any event no later than the closing of the



34









 







funding of the proposed Indebtedness or other action or the first Business Day of
any calendar quarter as to which a Revolver Quarterly Notice is given):




     (i) surrender to the Company, for cash consideration equal to the Par
Value of the Class B Common Stock to be surrendered, any number of shares of
the Class B Common Stock then held by Sprint and its Permitted Designees and
Permitted Transferees, without surrender or termination of its corresponding
Units,




     (ii) surrender, for no additional consideration, any governance rights
then held by Sprint, including the right to nominate one or more of the
Sprint Designees and the right to nominate all or any portion of the members
of any of the committees of the Company, except that




     (A) if Sprint surrenders any governance rights under this clause
(ii), the written notice of Sprint (or the Company, if the Company
requires the surrender) will identify the positions that will be
surrendered and, if applicable, the individuals that will resign,
and, in the case of an election by Sprint, the notice will be
accompanied by the necessary letters of resignation,




     (B) any vacancies on the Board created by this clause (ii) will
be filled by Independent Designees, and




     (C) if Sprint surrenders one or more of the Sprint Designees,
and at the time of the surrender Sprint is required to nominate an
Independent Director, Sprint may remove its Independent Director and
Sprint will no longer be required to nominate an Independent
Director, and




     (iii) surrender any other rights, or take any other actions, reasonably
necessary to permit (x) the applicable proposed Indebtedness to be funded or
other action to be consummated without violating, conflicting with, causing
a default or event of default under or resulting in the imposition of a lien
on the assets or property of the Company under, any of the covenants under
the Sprint Senior Debt Agreements and (y) the delivery by Sprint of a
Compliance Certificate and the rendering of the legal opinion contemplated
by Section 2.13(h).




     (e) If Sprint surrenders any shares of Class B Common Stock or any of its
governance rights under Section 2.13(d) above (whether in connection with a Sprint
election or as required by the Company), then at any time after that election is
made or requirement is imposed, Sprint may revoke its election (if applicable), and
restore whatever was surrendered by Sprint, if




     (i) Sprint identifies in writing to the Company and the remaining
Equityholders the right(s) it intends to have restored,



35









 







     (ii) Sprint refinances, amends, terminates or otherwise modifies the
Sprint Senior Debt Agreements such that




     (A) the Indebtedness then in place (or then proposed to be put
in place) or other actions taken or to be taken would no longer
violate, conflict with, cause a default or event of default under or
result in the imposition of a lien on the assets or property of the
Company or its Subsidiaries under, any of the covenants under the
Sprint Senior Debt Agreements as then in effect, and




     (B) Sprint would be able to deliver a Compliance Certificate
(together with the legal opinion contemplated by Section 2.13(h))
with respect to the Indebtedness then in place (or then proposed to
be put in place) or other actions taken or to be taken,


in each case, regardless of whether Sprint holds the additional Class B Common Stock or retains
whatever other right that was surrendered and is proposed by Sprint to be restored, and





     (iii) the Chief Executive Officer or Chief Financial Officer of Sprint
certifies in writing to the Company and the remaining Equityholders in form
and substance reasonably acceptable to the Company and the remaining
Equityholders to the facts described in clause (ii).


If Sprint complies with its obligations under this Section 2.13(e), the Company will take all steps
necessary to reissue the requested Class B Common Stock to Sprint (in exchange for payment by
Sprint to the Company of an amount in cash equal to the aggregate Par Value for the Class B Common
Stock being reissued), if applicable, and to restore whatever other rights are requested to be
restored, in each case, as soon as is reasonably practicable, and, if an amendment to this
Agreement is reasonably requested by Sprint to so restore any such rights, the Company and the
remaining Equityholders will so amend this Agreement as long as they are not adversely affected by
the amendment (beyond the restoration of such rights to Sprint). If Sprint is entitled to
reinstate a Sprint Designee to the Board, Sprint may do so only upon a vacancy of one of the seats
held by an Independent Designee or at a regularly scheduled meeting of stockholders at which
Directors are elected. If Sprint would then be obligated to appoint an Independent Director in
accordance with Section 2.1(a)(i)(A), and Sprint removed its Independent Director under subsection
(d) above, any replacement Director appointed by Sprint will qualify as an Independent Director.
Any election by Sprint under this Section 2.13(e) will not affect any rights or obligations of
Sprint under Section 2.1(a)(i)(B), 2.1(a)(vii) or 3.8(e)(i).





     (f) In addition to Sprint’s right to restore its rights under Section 2.13(e),
if Sprint surrenders any shares of Class B Common Stock under subsection 2.13(d)
above, then at any time after that election is made or the
requirement is imposed, Sprint may revoke its election, if applicable, and
cause the Company to re-issue to Sprint a specified number of shares of the Class B
Common Stock surrendered by Sprint (which may be all or less than all of the



36









 







shares surrendered, but may not exceed the number of shares surrendered), in exchange for
payment by Sprint to the Company of an amount in cash equal to the aggregate Par
Value of the shares to be re-issued, on written notice to the Company and the
remaining Equityholders, under the following circumstances:




     (i) If the Company issues additional Voting Securities that result in a
decrease in Sprint’s Percentage Interest as in effect immediately prior to
the issuance of the Voting Securities, then Sprint may cause the Company
re-issue to it a number of shares of Class B Common Stock (up to the number
of shares surrendered by Sprint) necessary to maintain Sprint’s Percentage
Interest as in effect immediately prior to the issuance of the Voting
Securities.




     (ii) If Sprint proposes to sell or otherwise transfer any of its Class
B Common Units, Sprint may cause the Company to re-issue a number of shares
of Class B Common Stock (up to a number of shares surrendered by Sprint)
equal to the number of Class B Common Units being sold or otherwise
transferred by Sprint, effective as of the closing of the sale or other
transfer, as long as the Class B Common Stock is Transferred by Sprint in
connection with the sale or transfer of Class B Common Units.


On receipt of the written request of Sprint to restore a specified number of shares of Class B
Common Stock in accordance with clause (i) or (ii) above, the Company will take all steps necessary
to reissue the requested Class B Common Stock to Sprint as soon as is reasonably practicable.





     (g) If at any time prior to the closing of the funding of any proposed
Indebtedness or the taking of such other action, the principal amount of the
proposed Indebtedness (or other commitment) increases in any material respect, or
the security package changes in any material respect, in each case from what is set
forth in the applicable Compliance Notice, the Company will promptly notify Sprint
in writing, including a reasonably detailed description of any such increase or
change (a “Modification Notice”). Regardless of whether Sprint has agreed
to provide a Compliance Certificate (together with the legal opinion contemplated by
Section 2.13(h)) with respect to the proposed Indebtedness or other action as
originally described in the Compliance Notice, Sprint will have ten days from the
date of the Modification Notice to indicate whether it will be able to provide a
Compliance Certificate (together with the legal opinion contemplated by Section
2.13(h)) on the closing of the funding of the proposed Indebtedness or the date on
which such other action as modified will be taken. If Sprint had previously
indicated that it could deliver the Compliance Certificate (together with the legal
opinion contemplated by Section 2.13(h)), but is no longer able to deliver the
Compliance Certificate (or the legal opinion contemplated by Section 2.13(h)) as
a result of the modification described in the Modification Notice, the process
described in Sections 2.13(b) through (e) will be reinitiated, except that the
closing of the funding of the proposed Indebtedness or other action will not occur



37









 







until at least 90 days following the date of the Modification Notice. If Sprint had
originally indicated that it was not able to provide the Compliance Certificate
(together with the legal opinion contemplated by Section 2.13(h)), then the closing
of the funding of the proposed Indebtedness or date such other action will be taken
will be no earlier than 90 days after the date of the Compliance Notice or Revolver
Quarterly Notice as provided in Section 2.13(c) above.




     (h) Upon each delivery of a Compliance Certificate or a certification described
in Section 2.13(e)(iii), Sprint will also cause to be delivered to the Company a
legal opinion of King & Spalding LLP or another law firm of nationally recognized
standing to the effect that the Indebtedness or other actions that are the subject
of the Compliance Certificate or certification described in Section 2.13(e)(iii)
will not violate, cause a default or event of default under or cause the imposition
of a lien on the assets or property of the Company or its Subsidiaries under any of
the Sprint Senior Debt Agreements, which opinion shall (A) be subject to reasonable
and customary assumptions, (B) be based upon reasonable and customary certificates
from the Company and Sprint, (C) be in form and substance reasonably satisfactory to
the Company and (D) provide that the Company and the proposed lender shall also be
entitled to rely thereon. Sprint shall cause drafts of any legal opinions to be
delivered pursuant to this Section 2.13(h) to be circulated to the Company within a
reasonable time prior to the closing of the funding of the relevant Indebtedness or
date such other actions will be taken.




     (i) If any credit agreement, indenture, guarantee or similar instrument (or
series of related instruments) evidencing or governing indebtedness for money
borrowed or guaranteed by Sprint or any of its Subsidiaries that does not constitute
a Sprint Senior Debt Agreement (an “Other Sprint Debt Agreement”) impairs
the ability of the Company or any of its Subsidiaries to incur Indebtedness or take
any other action, or is alleged to do so, upon written notice of such occurrence
from the Company, Sprint will comply with the requirements of this Section 2.13 with
respect to such Other Sprint Debt Agreement to the fullest extent as if such Other
Sprint Debt Agreement were a Sprint Senior Debt Agreement.



     2.14 Sprint Future Credit Agreements. 




     (a) Neither Sprint nor any of its Affiliates will enter into any agreement that
purports to restrict the ability of the Company and its Subsidiaries to incur
Indebtedness or take any other action, except that with respect to any amendment or
refinancing on or prior to December 31, 2010 of the Credit Agreement dated as of
December 19, 2005, as amended, among Sprint Nextel Corporation, Nextel
Communications, Inc., Sprint Capital Corporation, the banks and other financial
institutions and lenders that are parties thereto, and JPMorgan
Chase Bank, N.A., as Administrative Agent, or the Credit Agreement dated as of
March 23, 2007 between Sprint Nextel Corporation and Export Development Canada, (i)
Sprint will use its Reasonable Best Efforts to cause such amendment



38









 







or refinanced facility to not restrict the ability of the Company or its Subsidiaries to incur
Indebtedness or take any other action and (ii) in no event will Sprint enter into
any agreement in connection with any such amendment or refinancing that contains
restrictions (x) that are more restrictive than those contained in the Indenture
dated as of October 1, 1998 among Sprint Capital Corporation, Sprint Corporation and
Bank One, NA, as trustee, together with all supplements thereto or (y) that apply to
the Company to a greater extent than those contained in such Indenture.




     (b) Notwithstanding the foregoing, on or prior to January 1, 2011,




     (i) Sprint will take whatever actions are necessary to permit the
Company and its Subsidiaries (from and at all times on and after January 1,
2011) to incur Indebtedness and take any other action without violating any
of the Sprint Senior Debt Agreements or other Sprint indebtedness for
borrowed money, and




     (ii) Sprint will deliver a certification to the Company executed by
Sprint’s Chief Executive Officer or Chief Financial Officer stating that
neither Sprint nor any of its Affiliates are then subject to (x) any
agreement that restricts or may in the future restrict the ability of the
Company and its Subsidiaries to incur Indebtedness or take any other action
or (y) any Sprint Senior Debt Agreement that takes the Company or any of its
Subsidiaries into account in determining compliance with any financial
covenants or similar requirements contained in such agreements.




     (c) Sprint will not, and will cause its Affiliates not to, enter into on or
after January 1, 2011, any agreement that (x) restricts or may in the future
restrict the ability of the Company and its Subsidiaries to incur Indebtedness or
take any other action or (y) takes the Company or any of its Subsidiaries into
account in determining compliance with any financial covenants or similar
requirements contained in such agreements.


The provisions of Sections 2.13(d) through (f) (including the right of the Company to obligate
Sprint to take any of the actions described in Section 2.13(d)) will apply, mutatis mutandis, with
respect to Sprint’s obligations under this Section 2.14.




     2.15 Indemnified Litigation. 




     (a) At such time as is reasonably determined by the Company (such determination
to be made by the Transactions Committee and management of the Company) to be
necessary to avoid any possible restriction or limitation on the operations of the
Company and its Subsidiaries arising out of the Indemnified Litigation (as defined
in the Transaction Agreement), Sprint and the Company
will take, permit and authorize such actions with respect to the Company and
its Subsidiaries as are reasonably requested by the Company (such determination to
be made by the Transactions Committee and management of the Company) to




39












 






avoid any such restriction or limitation, which may include transferring
certain operations and assets of the Company and its Subsidiaries into special
purpose entities with special governance provisions in accordance with Exhibit M to
the Transaction Agreement, without regard to the provisions of Section 2.11. For
these purposes (i) the reasonableness of any requested actions other than the
actions described on Exhibit M to the Transaction Agreement will be determined
taking into account the projected operations of the Company and its Subsidiaries
during the three-year period following such request and (ii) any such requested
actions other than actions described on Exhibit M to the Transaction Agreement will
not be disproportionate in relation to the then-current and projected operations of
the Company and its Subsidiaries in the territory affected by Indemnified
Litigation.




     (b) Sprint will not amend any Sprint Affiliate Management Agreement, enter into
any new Sprint Affiliate Management Agreement or take any other action, in each
case, to extend an exclusivity provision under a Sprint Affiliate Management
Agreement to (i) WiMAX products and services in any manner that could restrict the
Company or (ii) the Company.



ARTICLE 3




TRANSFERS




     3.1 General Limitations on Transfer.




     (a) If any Equityholder or Non-Equityholder Transferee (as defined below)
Transfers a share of Class B Common Stock (to the extent otherwise permitted by this
Agreement and the Charter) without Transferring a corresponding Unit in accordance
with the terms of the Operating Agreement, the share of Class B Common Stock will be
immediately redeemed by the Company for its Par Value per share in accordance with
the terms of this Agreement and the Charter.




     (b) If any Equityholder or Non-Equityholder Transferee Transfers any Units (to
the extent permitted by the Operating Agreement) without Transferring a
corresponding number of shares of Class B Common Stock, a number of shares of Class
B Common Stock held by such Equityholder corresponding to the number of Units so
Transferred will be immediately redeemed by the Company for their Par Value per
share in accordance with the terms of this Agreement and the Charter.




     (c) An Equityholder may Transfer all or any portion of its shares of Class B
Common Stock (together with the corresponding Units), and may permit its Transferees
to Transfer all or any portion of the Class B Common Stock Transferred to them
(together with the corresponding Units), as long as (and in



40









 






addition to any other requirements of the Equityholder under this Agreement
with respect to such Transfer):




     (i) at least ten days prior to consummating a Transfer (whether by the
Equityholder or by its Transferee), the Equityholder (or the applicable
Transferee) notifies the Company in writing,




     (ii) as a condition to consummating the Transfer, any Transferee that
is not an Equityholder or a Permitted Designee or Permitted Transferee (a
“Non-Equityholder Transferee”) executes and delivers to the Company
and the Equityholders a Non-Equityholder Transferee Agreement in the form
attached as Exhibit E, and




     (iii) the Transfer (whether by the Equityholder or by its Transferee)
of Units corresponding to the Original Shares is made in accordance with the
terms of the Operating Agreement.




     (d) Except as specifically provided in the Non-Equityholder Transferee
Agreement, a Non-Equityholder Transferee will not be a party to this Agreement or
have any rights or obligations hereunder (and in determining whether a matter under
this Agreement that requires the approval of the holders of Class B Common Stock,
voting as a separate class, has been approved, the Class B Common Stock held by a
Non-Equityholder Transferee will be disregarded).




     (e) If any shares of Class B Common Stock (together with the corresponding
Units) are Transferred in a Transfer that is not permitted under Section 3.1(c)
above, such Transfer will be void ab initio.




     (f) None of Sprint, the Strategic Investors, Intel or any of their respective
Affiliates will Transfer (other than (x) to a Permitted Transferee pursuant to
Section 3.2 or (y) in the case of Intel only, in a Transfer of Existing Intel
Shares), whether directly or indirectly, all or any portion of its Equity Securities
(or the Units that correspond to its Equity Securities) to a single person or group
(as those terms are defined below) in a transaction or a series of related
transactions that would result in the Transferee person or group (other than any of
Sprint, the Strategic Investors or Intel or their respective Permitted Transferees
or Permitted Designees) together with its or their Permitted Transferees or
Permitted Designees having a Percentage Interest immediately after the proposed
Transfer equal to or greater than the Specified Percentage, unless the following
occurs:




     (i) The provisions of Sections 3.3 and 3.6 have been complied with in
full.




     (ii) As a condition to consummating the Transfer,




     (A) the Transferee makes (or causes another Person to make) a
tender offer to the holders of Class A Common Stock to



41









 





purchase all
shares of Class A Common Stock at a price per share
equal to or greater than the price per share that the Transferee
proposes to pay for the Equity Securities (including the
corresponding Units) proposed to be Transferred, and




     (B) all shares of Class A Common Stock that are properly
tendered and not withdrawn are purchased by the Transferee.




     (iii) If the consideration proposed to be paid for the Equity
Securities (including the corresponding Units) is other than cash, then the
same form of consideration is offered to the holders of Class A Common
Stock.




     (iv) The tender offer described in subsection (ii) above is conducted
in compliance with Law, including the rules and regulations under the
Exchange Act, and is not subject to any conditions other than those
contained in the agreement governing the proposed Transfer.




     (v) The agreement governing the proposed Transfer sets forth the
obligation described in this Section 3.1(f) and states that the holders of
Class A Common Stock are intended third party beneficiaries of the provision
setting forth such obligation.


For purposes of this Section 3.1(f), “person” and “group” have the meanings given to them for
purposes of Sections 13(d) and 14(d) of the Exchange Act or any successor provisions, and the term
“group” includes any group acting for the purpose of acquiring, holding or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act, or any successor provision.




     3.2 Certain Permitted Transfers.




     (a) Subject to Section 3.1, an Equityholder may Transfer all or any portion of
its Equity Securities, together with the corresponding Units, if any, to a Permitted
Transferee; provided, in each case, that such Equityholder gives written notice to
the Company of its intention to make a Transfer to such Transferee, stating the name
and address of the Permitted Transferee, the Equityholder’s relationship to the
Permitted Transferee and the type and amount of Equity Securities (and Units, if
any) to be Transferred. The Company will give prompt notice of the Transfer to each
other Equityholder. As a condition to such Transfer, the Equityholder will cause
the Permitted Transferee to execute and deliver to the Company and each other
Equityholder an Assignment and Assumption Agreement in the form attached as
Exhibit F, and upon consummation of such Transfer, such Permitted Transferee
will be an Equityholder and will be subject to all rights and obligations of the
Transferor Equityholder under this Agreement.



42









 






     (b) Except as provided in Section 3.12, before any Permitted Transferee ceases
to qualify as a Permitted Transferee of the relevant
Equityholder, such Permitted Transferee will Transfer full legal and beneficial
ownership of its Equity Securities (and Units, if any) to the applicable Parent or,
subject to this Article 3, another Permitted Transferee of the relevant Parent. If
a Transfer is not made in accordance with the immediately preceding sentence, then,
in addition to all other remedies available at law or in equity, each share of Class
B Common Stock held by such non-qualifying Permitted Transferee will be immediately
redeemed by the Company for its Par Value per share in accordance with the terms of
this Agreement and the Charter.




     (c) Except as provided in Section 3.12, before any Equityholder (if not a
Parent), or any Subsidiary of a Parent that Controls such Equityholder, ceases to be
a direct or indirect wholly-owned Subsidiary of its Parent, or, in the case of BHN,
less than 100% of the economic and voting interests in BHN cease to be Controlled by
BHN’s Parent, such Equityholder will Transfer full legal and beneficial ownership of
its Equity Securities (and Units, if any) to its Parent or, subject to this Article
3, another Permitted Transferee of the relevant Parent. In the event of a breach of
the immediately preceding sentence, then, in addition to all other remedies
available at law or in equity, each share of Class B Common Stock held by such
Equityholder, will be immediately redeemed by the Company for its Par Value per
share in accordance with the terms of this Agreement and the Charter.



     3.3 Right of First Offer. 




     (a) Subject to Section 3.1, 3.11 and the remaining provisions of this Section
3.3, if an Equityholder (for purposes of this Section 3.3, a “Selling
Equityholder”) desires to Transfer (other than as part of an Excluded Transfer)
all or any portion of its Equity Securities (the Equity Securities proposed to be
Transferred by the Selling Equityholder, the “Subject Stock”), the Selling
Equityholder will notify each of the remaining Equityholders that then owns
(together with the particular Equityholder’s Permitted Transferees and Permitted
Designees) a number of shares of Common Stock equal to at least 50% of its Original
Shares (for purposes of this Section 3.3, the “Non-Selling Equityholders”)
in writing prior to entering into any agreement with respect to the proposed
Transfer of the Subject Stock. That notice (the “Interest Notice”) will set
forth the number of shares of Subject Stock that the Selling Equityholder desires to
Transfer, the material terms of a transaction in which the Selling Equityholder is
willing to engage, including a proposed Transfer price payable in cash and, if
applicable, whether the Transfer is to be an Open Market Transfer.




     (b) Within 30 days of its receipt of the Interest Notice, or five Business Days
in respect of a proposed Open Market Transfer, each of the Non-Selling Equityholders
may notify the Selling Equityholder in writing as to whether it intends to purchase
all or any portion of the Subject Stock on the terms and conditions set forth in the
Interest Notice and, in respect of an Open Market



43









 






Transfer, subject to Section
3.3(h) (the “Response Notice”). Any Response Notice from a Non-Selling
Equityholder who wishes to exercise its right to
purchase more than the number of shares of Subject Stock set forth in
subsection (i) below assuming all Non-Selling Equityholders exercise their rights in
full under this Section 3.3 will state the maximum number of shares of Subject Stock
that it wishes to purchase. A Response Notice shall constitute a binding and
irrevocable election by the Non-Selling Equityholder delivering such Response Notice
to purchase the portion of the Subject Stock specified therein.




     (i) If the Response Notices of the Non-Selling Equityholders present an
offer, collectively, for all but not less than all of the Subject Stock, the
parties will consummate the sale of the Subject Stock at the time and in the
manner set forth in Section 3.3(e) and Section 3.3(f). Unless otherwise
agreed by the Non-Selling Equityholders, the right to purchase the Subject
Stock will be allocated among the Non-Selling Equityholders pro rata based
on their relative Percentage Interests as of the date of the Interest Notice
(or, if fewer than all of the Non-Selling Equityholders elect to purchase,
based on the relative Percentage Interests (as of the date of the Interest
Notice) of the Non-Selling Equityholders that elect to purchase the Subject
Stock in accordance with this Section 3.3). If there are two or more
Non-Selling Equityholders that exercise their option to purchase more than
their pro rata share of Subject Stock for a total number of shares of excess
Subject Stock in excess of the number of available shares of Subject Stock,
such excess Subject Stock shall be allocated among such Non-Selling
Equityholders on a pro rata basis based on their respective Percentage
Interests as of the date of the Interest Notice. All calculations under
this subsection (i) will be made on an as-converted to Class A Common Stock
basis (i.e., each share of Class B Common Stock, plus one Unit, will equal
one share of Class A Common Stock in such calculations).




     (ii) If none of the Non-Selling Equityholders delivers a Response
Notice or if the Response Notices of the Non-Selling Equityholders,
collectively, present an offer for less than all of the Subject Stock, the
Non-Selling Equityholders will be deemed to have declined to exercise their
rights under this Section 3.3 and, subject to Section 3.1, Sections 3.3(c),
3.3(d) and 3.3(h), and Section 3.4 (if the Selling Equityholder is the
Principal Equityholder), the Selling Equityholder may proceed with the
proposed Transfer of such Subject Stock to the proposed Transferee based on
the terms and conditions set forth in the Interest Notice.




     (c) A Selling Equityholder may Transfer Subject Stock pursuant to Section
3.3(b)(ii) to a proposed Transferee (other than a Non-Selling Equityholder) or in an
Open Market Transfer only if:



44









 






     (i) the proposed Transferee is not an Affiliate of the Selling
Equityholder,




     (ii) (A) in the case of any Transfer other than an Open Market
Transfer, the Transfer is consummated on arm’s-length terms at a price not
lower, and on other terms and conditions no less favorable, in the
aggregate, to the Selling Equityholder than those set forth in the most
recent Interest Notice, or (B) in the case of an Open Market Transfer, at a
price greater than or equal to 95% of the price specified in the Interest
Notice, and




     (iii) except in the case of an Open Market Transfer, the Selling
Equityholder enters into a definitive agreement to Transfer all of the
Subject Stock within 90 days of obtaining the right to do so in accordance
with Section 3.3(b)(i) or (ii), as applicable, and consummates the Transfer
within 180 days after entering into the definitive agreement (which 180-day
period will be extended if the Transfer is subject to regulatory approval
until the expiration of five Business Days after all such approvals have
been received, but in no event later than 270 days after entering into the
definitive agreement).


If the proposed Transfer does not comply with clauses (i) or (ii) above, or if the Selling
Equityholder fails to enter into a definitive agreement within the 90-day period, or fails to
consummate the Transfer within the 180-day period (as may be extended pursuant to clause (iii)
above), the Selling Equityholder’s right to Transfer the Subject Stock under those clauses will
terminate, and the Selling Equityholder will be required to initiate the process set forth in this
Section 3.3 before Transferring all or any portion of its Equity Securities (other than in an
Excluded Transfer).





     (d) If a Selling Equityholder Transfers Subject Stock to a proposed Transferee
(other than a Non-Selling Equityholder), or in an Open Market Transfer, in
accordance with this Section 3.3, the Transfer by the Selling Equityholder will be
subject to the other terms and restrictions of this Agreement.




     (e) The closing of the purchase of any Subject Stock by the Non-Selling
Equityholders will take place at the offices of the Company, or at another location
mutually agreed by the parties to the sale, on a date mutually agreed by the parties
to the sale that is no later than the latest of




     (i) the date specified in the Interest Notice as the intended date of
the proposed Transfer, and




     (ii) 45 days after delivery of the applicable Response Notice or if
approvals of any Governmental Authority are required, then five Business
Days following the expiration of whatever period is required to obtain any
necessary regulatory approvals in connection with the sale, but



45









 






in no event
more than 180 days after delivery of the applicable Response Notice.




     (f) At the closing of the purchase of any Subject Stock by the Non-Selling
Equityholders, the Selling Equityholder will deliver




     (i) if the Subject Stock is certificated, a certificate or certificates
for the Subject Stock to be sold, in each case accompanied by stock powers
with signatures guaranteed and all necessary stock transfer Taxes paid and
stamps affixed, if necessary, or




     (ii) if the Subject Stock is uncertificated, proper transfer
instructions from the Selling Equityholder or the Selling Equityholder’s
lawfully constituted attorney-in-fact, accompanied by evidence that all
necessary stock transfer Taxes have been paid and evidence of compliance
with appropriate procedures for transferring shares in uncertificated form,




     (iii) in either case against receipt of the purchase price therefor by
certified or official bank check or by wire transfer of immediately
available funds.




     (g) Notwithstanding the foregoing, the provisions of this Section 3.3 will not
apply to (an “Excluded Transfer”):




     (i) in the case of Eagle River, any Open Market Transfer,




     (ii) in the case of Intel, any Transfer or series of Transfers of the
Existing Intel Shares,




     (iii) any Transfer of Equity Securities that is part of a merger,
consolidation, share exchange, recapitalization, business combination or
other similar transaction involving the Company, in each case, that
constitutes a Change of Control of the Company and that has been approved by
the Board and the stockholders of the Company as required by this Agreement
and Law,




     (iv) a Spin-Off Transaction; provided, however, that following a
Spin-Off Transaction, the Spin-Off Entity will be subject to each of the
obligations and enjoy each of the rights of the Spinning Entity for all
purposes under this Agreement,




     (v) a Transfer to a Permitted Transferee,




     (vi) any Exchange Transaction (as defined in the Operating Agreement),
or




     (vii) any Transfer by a Tag-Along Equityholder pursuant to Section 3.4.



46









 






     (h) In addition to the other provisions of this Agreement, a Selling
Equityholder (other than Eagle River or, with respect to Existing Intel Shares only,
Intel) may Transfer Subject Stock in an Open Market Transfer only if




     (i) in the case of an Open Market Transfer that is Registered, the
Transfer is made within 90 days of the delivery of the latest of the
applicable Response Notices (unless, during the 90-day period, the Company
has postponed the filing or effectiveness of the registration statement with
respect to the Registered Open Market Transfer, in which case the 90-day
period will be tolled for as long as the postponement is in effect), or




     (ii) in the case of an Open Market Transfer that is not Registered, the
Transfer is made within 30 days of the delivery of the latest of the
applicable Response Notices.




     (i) The Strategic Investors, acting through the Strategic Investor
Representative, will exercise their rights pursuant to this Section 3.3 as a group,
and the Strategic Investor Group will be deemed to be a single “Non-Selling
Equityholder” for purposes of calculating the number of shares of Subject Stock
which the Strategic Investor Group is entitled to purchase under Section 3.3(b)(i).
Unless the Strategic Investors otherwise agree (as notified by the Strategic
Investor Representative to the Company and the remaining Equityholders), Subject
Stock to be Transferred by or to the Strategic Investor Group (whether as a Selling
Equityholder or a Non-Selling Equityholder) will be allocated among the Strategic
Investors based on their relative Percentage Interests within the Strategic Investor
Group.



     3.4 Tag-Along Rights. 




     (a) Subject to Sections 3.1, 3.3, 3.11 and the remaining provisions of this
Section 3.4, if the Principal Equityholder proposes to Transfer (other than as part
of (x) an Excluded Transfer described in clauses (ii), (iv), (v), (vi) or (vii) of
Section 3.3(g), or (y) an Open Market Transfer), in one transaction or a series of
related transactions, directly or indirectly, all or any portion of its Equity
Securities, and such transaction or series of related transactions would result in
the proposed Transferee and its Affiliates (collectively referred to as the
“Proposed Transferee”) having a Percentage Interest immediately after the
proposed Transfer equal to or greater than the Specified Percentage, the Principal
Equityholder will promptly notify the other Equityholders (for purposes of this
Section 3.4, the “Tag-Along Equityholders”) in writing at least 30 days
before the closing of the proposed Transfer (a “Tag-Along Notice”) setting
forth the number of shares of Equity Securities proposed to be Transferred (for
purposes of this Section 3.4, the “Sale Securities”), the nature of the
proposed Transfer, the aggregate consideration to be paid for the Sale Securities
(including the type of consideration to be paid), the name and address of each
Proposed Transferee, the



47









 






proposed closing date of the Transfer and any other material information
regarding the terms of the proposed Transfer and the Proposed Transferee.




     (b) With respect to Sale Securities, each of the Tag-Along Equityholders will
have the right, exercisable on delivery of written notice to the Principal
Equityholder within 30 days after receipt of the Tag-Along Notice, to irrevocably
elect to sell a portion of its Equity Securities (without regard to whether such
Equity Securities are the same class as the Sale Securities), on the same terms and
conditions as set forth in the Tag-Along Notice, in lieu of shares of Sale
Securities. The number of Equity Securities to be substituted by each electing
Tag-Along Shareholder will equal the product of the number of shares of Sale
Securities, multiplied by a fraction, the numerator of which is the number of Equity
Securities owned by such Tag-Along Equityholder and the denominator of which is the
total number of Equity Securities owned by the Equityholders at the time the
Tag-Along Notice is delivered.


All calculations under this subsection (b) will be made on an as-converted to Class A Common Stock
basis (i.e., each share of Class B Common Stock, plus one Unit, will equal one share of Class A
Common Stock in such calculations).





     (c) If none of the Tag-Along Equityholders makes a timely election to exercise
its tag-along rights under Section 3.4(b), the Principal Equityholder may sell all,
but not less than all, of the Sale Securities to the Proposed Transferee provided
that such Transfer is consummated on arm’s-length terms at a price not higher and on
other terms and conditions no more favorable, in the aggregate, to the Principal
Equityholder than the terms and conditions set forth in the Tag-Along Notice. In
addition,




     (i) any material change in the terms and conditions contained in the
Tag-Along Notice (that is more favorable to the Principal Equityholder) will
constitute a new proposal to Transfer for purposes of this Section 3.4; and




     (ii) definitive documents for the sale by the Principal Equityholder
must be executed on or prior to the 90th day following the expiration of the
Tag-Along Equityholders’ tag-along rights under this Section 3.4 and
consummated within 180 days following the expiration of such tag-along
rights (which 180-day period will be extended if the Transfer is subject to
regulatory approval until the expiration of five Business Days after all
such approvals have been received, but in no event later than 270 days
following the expiration of such tag-along rights), and if the sale is not
executed within the 90-day period and consummated within the 180-day period
(as may be extended for the receipt of applicable regulatory approvals), the
Sale Securities will again become subject to the rights of the Tag-Along
Equityholders under this Section 3.4.



48









 






     (d) If any of the Tag-Along Equityholders elects to exercise its tag-along
rights under Section 3.4(b), the number of shares of Sale Securities to be
Transferred by the Principal Equityholder to the Proposed Transferee will be reduced
by the applicable number of Voting Securities to be included in the Transfer by the
applicable Tag-Along Equityholders, and the Transfer to the Proposed Transferee will
otherwise proceed in accordance with the terms of this Section 3.4 and the Tag-Along
Notice.




     (e) The closing of the sale of any Sale Securities elected to be sold by the
Tag-Along Equityholders pursuant to this Section 3.4 will take place at the offices
of the Company, or at another location mutually agreed by the parties to the sale,
and on a date mutually agreed by the parties to the sale that is no later than the
latest of




     (i) the date specified in the Tag-Along Notice as the intended date of
the proposed Transfer to the Proposed Transferee,




     (ii) 90 days after delivery of the applicable Tag-Along Notice, and




     (iii) five Business Days following the expiration of whatever period is
required to obtain any necessary regulatory approvals in connection with the
sale.




     (f) The following will apply to any Transfer of Sale Securities (whether by the
Principal Equityholder or by the Tag-Along Equityholders):




     (i) the Transfer by the Principal Equityholder (and any Tag-Along
Equityholders, if applicable) will be subject to the other terms and
restrictions of this Agreement, and




     (ii) any future proposed Transfer of Equity Securities other than the
Sale Securities by the Principal Equityholder (and any Tag-Along
Equityholders, if applicable) will remain subject to the terms and
conditions of this Agreement, including this Article 3.




     (g) The Strategic Investors, acting through the Strategic Investor
Representative, will exercise their rights pursuant to this Section 3.4 as a group,
and the Strategic Investor Group will be deemed to be a single “Tag-Along
Equityholder” for purposes of calculating the number of Voting Securities which the
Strategic Investor Group is entitled to sell as a Tag-Along Equityholder. Unless
the Strategic Investors otherwise agree (as notified by the Strategic Investor
Representative to the Company and the remaining Equityholders), Sale Securities to
be Transferred by the Strategic Investor Group (whether as a Principal Equityholder
or as a Tag-Along Equityholder) will be allocated among the Strategic Investors
based on their relative Percentage Interests within the Strategic Investor Group.



49









 





     3.5 Preemptive Rights.




     (a) Each Equityholder will have the right to purchase its Preemptive Right Pro
Rata Share (as defined below) of New Securities (as defined in Section 3.5(f)) that
the Company may from time to time propose to issue. An Equityholder’s
“Preemptive Right Pro Rata Share” will be, at any given time, that
proportion, calculated before any proposed issuance of New Securities, that the
voting power represented by the Voting Securities owned by an Equityholder at that
time bears to the total voting power represented by the Voting Securities issued and
outstanding at that time.




     (b) Subject to Section 3.5(d)(i), if the Company proposes to issue New
Securities, it will give the Equityholders a written notice (the “Notice of
Issuance”) of its intention to sell New Securities, setting forth the price, the
identity of the proposed purchaser(s) (if known) and the principal terms on which
the Company proposes to issue the New Securities. Subject to Section 3.5(c), each
Equityholder will have 30 days from the date of receipt of any Notice of Issuance
(“New Securities Notice Period”) to elect to purchase a number of New
Securities up to its Preemptive Right Pro Rata Share of New Securities (in each case
calculated before the issuance and rounded to the nearest whole share), for the
price and on the terms specified in the Notice of Issuance, by giving written notice
to the Company stating the number of New Securities to be purchased.




     (c) Each holder of Class B Common Stock will have, at its option, the right to
purchase the following in lieu of New Securities:




     (i) from the Company, Voting Securities that have voting rights that
are the same as the voting rights in the New Securities (“Alternative
Voting Securities”), and




     (ii) from the LLC, additional Units that have the economic and other
rights (other than voting rights) that are the same as the economic and
other rights (other than voting rights) of the New Securities
(“Alternative Units”; and, together with the Alternative Voting
Securities, “Alternative New Securities”),


in each case, so that the holders of Class B Common Stock are able to maintain the allocation of
economic and other non-voting rights, if any, included as part of the New Securities, and voting
rights, if any, included as part of the New Securities, in the same manner that economic, voting
and other non-voting rights are allocated between the Class B Common Stock and the corresponding
Units. The aggregate price payable for the new Voting Securities and new Units by the applicable
Equityholders will be the price for the New Securities that is set forth in the Notice of Issuance,
allocated between the Company and the LLC based on the relative value of the new Voting Securities
and the new Units purchased under this Section 3.5.





     (d) If the Company proposes to issue New Securities in a Public Offering, the
following will apply:



50









 






     (i) In lieu of sending a Notice of Issuance as provided in Section
3.5(b), at least ten Business Days prior to the printing of the “red
herring” prospectus for the Public Offering, the Company will give written
notice to the Equityholders (a “Public Offering Notice”) setting
forth




     (A) the Company’s then-current estimate of the number of shares
of Common Stock the Company intends to offer,




     (B) the anticipated per share range for the offering price,




     (C) any other material terms on which the Company proposes to
issue the New Securities, and




     (D) the date on which the “red herring” prospectus is expected
to be printed.




     (ii) At least five Business Days prior to the date referred to in
Section 3.5(d)(i)(D), each Equityholder will deliver a binding notice to the
Company stating whether and as to how many shares the Equityholder will
elect to purchase (up to its Preemptive Right Pro Rata Share rounded to the
nearest whole share). If an Equityholder fails to notify the Company by the
required time, the Equityholder will be deemed to have declined to exercise
its rights under this Section 3.5 with respect to that Public Offering.




     (iii) The actual purchase price for an Equityholder’s Preemptive Right
Pro Rata Share of New Securities will be a per share purchase price equal to
the purchase price paid for the securities issued in the Public Offering
that gave rise to the rights under this Section 3.5, net of any underwriting
discounts in connection with that Public Offering. In the case of a holder
of Class B Common Stock, the purchase price will be allocated between the
new Voting Security and the new Unit based on the relative value of the new
Voting Securities and the new Units purchased under Section 3.5(c).




     (e) The Company will have 180 days after the date of the Notice of Issuance or
Public Offering Notice, as applicable, to consummate the sale of any New Securities
with respect to which the Equityholders’ preemptive rights were not exercised, at or
above the price and on terms not more favorable, in the aggregate, to the purchasers
of the New Securities than the terms specified in the initial Notice of Issuance or
Public Offering Notice, as applicable, given in connection with that sale, except
that the preceding restrictions on the price and terms and conditions of any sale
will not apply to sales based on the prevailing market price of Voting Securities on
NASDAQ or any other public trading medium at the time that the sale of New
Securities is effected.



51









 






     (f) For purposes of this Agreement, “New Securities” means any capital
stock (including Common Stock) of the Company issued (or to be issued) after the
Effective Date, whether now or hereafter authorized, and any rights, options,
warrants or other rights to purchase or acquire capital stock, and securities of any
type whatsoever that are, or may become, exchangeable or exercisable for or
convertible into capital stock. The term “New Securities” does not include,
and the preemptive rights described in this Section 3.5 will not be exercisable with
respect to, any of the following:




     (i) securities issued to holders of Class B Common Stock in connection
with the right of those holders, under the terms of the Charter and the
Operating Agreement, to convert their shares of Class B Common Stock,
together with the corresponding Units, into shares of Class A Common Stock;




     (ii) securities issued to officers, employees or directors of the
Company in connection with a person’s employment or director arrangements
with the Company under any employee benefit plan of the Company adopted by
the Board, including but not limited to any Incentive Plan;




     (iii) securities issued in connection with any Recapitalization Event
of the Company approved by the Board;




     (iv) securities issued in connection with the acquisition of another
business entity or business segment of another entity by the Company or any
Subsidiary of the Company, or in connection with the acquisition of 2.5 GHz
Spectrum by the Company or any Subsidiary of the Company;




     (v) securities issued in connection with the exercise of any right,
option or warrant to acquire any security or the conversion of any security,
in any case that (x) were outstanding prior to the Effective Date or (y)
were issued after the Effective Date and were treated as New Securities in
respect of which preemptive rights were offered pursuant to this Section
3.5;




     (vi) securities issued under Section 4.3 of the Transaction Agreement;




     (vii) securities issuable or issued to consultants, vendors, lessors or
others with whom the Company conducts business (other than the Equityholders
and their respective Affiliates), as long as




     (A) the securities are issued directly in a transaction approved
by the Board, and



52









 




     (B) the issuance of securities is not for financing purposes;



     (viii) securities issued to financial institutions or lessors in
connection with commercial credit arrangements, equipment financing or
similar transactions, as long as the securities are issued directly in a
transaction approved by the Board; and



     (ix) securities issued (other than to any Equityholder or any of its
Affiliates) in transactions involving technology licensing, research or
development activities, the use or acquisition of strategic assets,
properties or rights, or the distribution, manufacture or marketing of the
Company’s products, as long as



     (A) the securities are issued directly in a transaction approved
by the Board, and



     (B) the issuance of securities is not for financing purposes.



     (g) The closing of the purchases of an Equityholder’s Preemptive Right Pro Rata
Share of New Securities (and Alternative New Securities, if any) under this Section
3.5 will take place at the offices of the Company:



     (i) in the case of an issuance of New Securities other than in
connection with a Public Offering, on a date specified by the exercising
Equityholders, which will be within 30 days after the exercise of such
Equityholder’s rights under this Section 3.5, or (if later) within 10 days
after the receipt of all required regulatory approvals, and



     (ii) in the case of an issuance of New Securities in connection with a
Public Offering, on the date of the Public Offering.



At the closing, the Company and the LLC will deliver, or cause to be delivered, to
the purchasing Equityholder, certificates (if applicable) representing the shares of
New Securities (and Alternative New Securities, if any) to be purchased by the
purchasing Equityholder, in the name of the purchasing Equityholder (and Unit
holder, as applicable), against payment of the purchase price therefor, as provided
below; and the purchasing Equityholder will deliver to the Company and to the LLC an
amount in cash by wire transfer in immediately available funds equal to the product
of the applicable price per share determined


          (x) in the Notice of Issuance, in the case of an issuance of New Securities other than
in connection with a Public Offering, and


          (y) under Section 3.5(d)(iii), in the case of an issuance of New Securities issued in
connection with a Public Offering,


53








 




in each case, multiplied by the number of shares of New Securities or Alternative New Securities,
as applicable, to be acquired by the purchasing Equityholder.





     (h) After giving a Notice of Issuance, the Company may close (prior to the
expiration of the New Securities Notice Period) the sale of any portion of the New
Securities that is not subject to preemptive rights under this Section 3.5, or as to
which any Equityholder has affirmatively waived its rights under this Section 3.5.




     (i) The rights under this Section 3.5 will terminate with respect to an
Equityholder if and when such Equityholder and its Permitted Transferees and
Permitted Designees cease to own, in the aggregate, a number of shares equal to at
least 50% of the Original Shares of such Equityholder.




     (j) The Strategic Investors, acting through the Strategic Investor
Representative, will exercise their rights pursuant to this Section 3.5 as a group,
and the Strategic Investor Group will be deemed to be a single “Equityholder” for
purposes of calculating its Preemptive Right Pro Rata Share under Section 3.5(a).
Unless the Strategic Investors otherwise agree (as notified by the Strategic
Investor Representative to the Company and the remaining Equityholders), New
Securities (or Alternative New Securities) acquired by the Strategic Investor Group
will be allocated among the Strategic Investors based on their relative Percentage
Interests within the Strategic Investor Group.



     3.6 Transfers to a Restricted Entity. 




The Principal Equityholder and its Permitted Transferees and Permitted Designees
will not Transfer any of their Equity Securities to:




     (a) any Strategic Investor Restricted Entity without the prior written consent
of the Strategic Investor Representative (acting on behalf of the Strategic
Investors), if the Strategic Investor Group is then a Consenting Equityholder,




     (b) any Intel Restricted Entity without Intel’s prior written consent, if Intel
is then a Consenting Equityholder, or




     (c) any Sprint Restricted Entity without Sprint’s prior written consent, if
Sprint is then a Consenting Equityholder;




in each case, if:




     (x) such Transfer would constitute a Change of Control of the Company or any of
its Subsidiaries, or




     (y) after giving effect to such Transfer, the applicable Restricted Entity
would have a Percentage Interest in excess of the Specified Percentage, or would
have the contractual right to acquire Equity Securities (or Units) that would give
the Restricted Entity, in the aggregate, a Percentage Interest in excess of the



54









 






Specified Percentage immediately after the acquisition of those Equity
Securities or Units, as applicable.



     3.7 Standstill Agreement.




     (a) Notwithstanding any other provision of this Agreement, but subject to
Section 3.11, at any time before the end of the Standstill Period, none of the
Standstill Equityholders will in any manner, directly or indirectly (whether through
an agent, representative or otherwise),




     (i) effect (whether publicly or otherwise), participate in, provide or
guarantee financing for any third parties in




     (A) any direct or indirect acquisition of any Common Stock (or
beneficial ownership of Common Stock) or any option or other right to
acquire any Common Stock except (w) by Sprint in accordance with
Section 2.13(e) or 2.13(f) or by any Standstill Equityholder in
accordance with Section 4.3 of the Transaction Agreement, (x) by
means of a conversion of Units as provided in the Operating Agreement
and the Charter; (y) in a transaction expressly permitted under, and
executed in accordance with, Article 3 of this Agreement; or (z)
pursuant to a Recapitalization Event; or




     (B) any direct or indirect acquisition of any of the assets of
the Company, other than acquisitions of assets




     (I) in the ordinary course of business, or




     (II) with a value of no more than $10 million in the
aggregate,




or of any businesses of the Company, or any option or other right to
acquire any of the foregoing (including from a third party), or




     (C) any tender or exchange offer, merger or other business
combination involving the Company or any Subsidiary of the Company;




     (ii) form, join or in any way participate in a “group” (as that term is
defined for purposes of Sections 13 and 14 of the Exchange Act or any
successor provisions) with respect to any of the actions referred to in
clause (i) above; or




     (iii) solicit, negotiate with or enter into any agreement with any
third party with respect to any of the foregoing or make any public
announcement of its intention or desire to do so.



55









 






     (b) The provisions of Section 3.7(a) will not apply to an acquisition of Common
Stock by a Standstill Equityholder




     (i) if that Standstill Equityholder acquires (x) a Parent or (y) any
other Person that holds Common Stock as part of the acquisition of an
operating business, so long as in the case of clause (y) the Standstill
Equityholder causes the Person to divest itself of the Common Stock within
180 days following the consummation of such acquisition transaction,




     (ii) subject to Section 3.8, if that Standstill Equityholder has
offered to purchase 100% of the outstanding Common Stock not owned by such
Equityholder, and the offer




     (A) has been approved by a Simple Majority of the Board
(excluding the Equityholder Designees of the applicable Standstill
Equityholder) and




     (B) is subsequently accepted or approved by a majority of the
voting power represented by the Voting Securities of the Company
(excluding the Voting Securities of the Standstill Equityholder and
its Permitted Transferees and Permitted Designees), either by the
tendering of Voting Securities or by an affirmative vote at a meeting
of the stockholders called to approve the transaction




     (C) (a “Qualifying Purchase”),




     (iii) if




     (A) the acquisition of Common Stock is in response to a bona
fide offer by a stockholder to sell its Common Stock to the
Standstill Equityholder in a private sale that would otherwise be
prohibited by Section 3.7(a),




     (B) both




     (I) a Simple Majority of the Board (excluding the
Equityholder Designees of the applicable Standstill
Equityholder), and




     (II) each of Sprint, Intel and the Strategic Investor
Representative (on behalf of the Strategic Investor Group)




have agreed to release the applicable Standstill Equityholder
from its obligations under Section 3.7(a) with respect to
such acquisition, and



56









 






     (C) each other Equityholder that then has preemptive rights
under Section 3.5 has been offered the opportunity to participate in
such transaction on a pro rata basis in accordance with its
Percentage Interest (relative to the Percentage Interests of those
Equityholders that elect to participate in such transaction), or




     (iv) as provided in Section 3.7(c).




     (c) If the Company issues Non-Preemptive Rights Securities (as defined below),
the following will apply:




     (i) Notwithstanding the provisions of Section 3.7(a), each of the
Standstill Equityholders will have the right to acquire, in the open market,
the number of shares of Common Stock necessary to cause the Percentage
Interest of that Standstill Equityholder to equal (to the nearest whole
share) what it would be if the Non-Preemptive Rights Securities had not been
issued (as adjusted for Recapitalization Events). Any acquisition or
Transfer of Equity Securities by a Standstill Equityholder after the date of
the applicable issuance of Non-Preemptive Rights Securities (other than in
connection with a Recapitalization Event), whether under this Agreement or
otherwise, will not affect the number of shares of Common Stock that a
Standstill Equityholder is permitted to acquire in accordance with this
Section 3.7(c).




     (ii) On each March 31st, June 30th, September 30th and December 31st
during the term of this Agreement, the Company will notify the Standstill
Equityholders in writing of any issuances of Non-Preemptive Rights
Securities that have occurred since the date of the most recently delivered
notice under this Section 3.7(c)(ii).




     (iii) If the Company issues Non-Preemptive Rights Securities, a
Standstill Equityholder will be deemed to have a Percentage Interest for all
purposes under this Agreement, for a period of 30 days after such Standstill
Equityholder has received notice from the Company of such issuance, equal to
its Percentage Interest immediately prior to the issuance of such
Non-Preemptive Rights Securities. At the end of such 30-day period, the
Percentage Interest of such Standstill Equityholder will convert to its
actual Percentage Interest.




     (iv) For purposes of this Agreement, “Non-Preemptive Rights
Securities” means and includes any Equity Securities, including Equity
Securities issued in respect of options, warrants, convertible securities or
other rights to purchase or acquire Equity Securities, in each case, that
are excluded from the definition of New Securities under Section 3.5(f)
(other than those excluded under clauses (i), (iii), (v) and (vi) thereof).




     (d) For purposes of this Section 3.7,



57









 






     (i) “Standstill Period” means, with respect to any
Equityholder, the period from the Effective Date until the later to occur of




     (A) the fifth anniversary of the Effective Date, and




     (B) with respect to the restrictions on the Strategic Investors,
the earliest date on which




     (I) Sprint ceases to own a number of shares of Common
Stock equal to at least 50% of the Sprint Original Shares or
Sprint has a Percentage Interest of less than 5%, and




     (II) Intel ceases to own a number of shares of Common
Stock equal to at least 50% of the Intel Original Shares or
Intel has a Percentage Interest of less than 5%;




     (C) with respect to the restrictions on Intel, the earliest date
on which




     (I) Sprint ceases to own a number of shares of Common
Stock equal to at least 50% of the Sprint Original Shares or
Sprint has a Percentage Interest of less than 5%, and




     (II) the Strategic Investor Group ceases to own a number
of shares of Common Stock equal to at least 50% of the
Strategic Investor Original Shares or the Strategic Investor
Group has, collectively, a Percentage Interest of less than
5%; and




     (D) with respect to the restrictions on Sprint, the date on
which




     (I) the Strategic Investor Group ceases to own a number
of shares of Common Stock equal to at least 50% of the
Strategic Investor Original Shares or the Strategic Investor
Group has, collectively, a Percentage Interest of less than
5%, and




     (II) Intel ceases to own a number of shares of Common
Stock equal to at least 50% of the Intel Original Shares or
Intel has a Percentage Interest of less than 5%.




     (ii) “Standstill Equityholders” means




     (A) Sprint and its Controlled Affiliates,



58









 






     (B) each Strategic Investor and its Controlled Affiliates, and




     (C) Intel and its Controlled Affiliates.



     3.8 Joint Purchase Rights.




     (a) If Sprint, Intel or any member of the Strategic Investor Group (the
“Initiating Equityholder”) desires, at any time when the Standstill Period
is still in effect with respect to the applicable Initiating Equityholder, to
purchase outstanding shares of Common Stock, in one transaction or a series of
related transactions, whether directly or indirectly, in a Qualifying Purchase, the
Initiating Equityholder will promptly notify (i) if Sprint is the Initiating
Equityholder, the Strategic Investor Group and Intel, (ii) if Intel is the
Initiating Equityholder, Sprint and the Strategic Investor Group or (iii) if a
member of the Strategic Investor Group is the Initiating Equityholder, Intel, Sprint
and the remaining members of the Strategic Investor Group (in each case, for
purposes of this Section 3.8, the “Non-Initiating Equityholders”) in writing
at least 30 days before commencing the process required under this Agreement to
engage in a Qualifying Purchase (a “Qualifying Purchase Notice”) setting
forth the nature of the proposed Qualifying Purchase, the aggregate consideration
(in cash) to be paid for the outstanding shares of Common Stock proposed to be
purchased (the “Qualifying Purchase Securities”), the proposed commencement
and closing date of the proposed Qualifying Purchase and any other material
information regarding the terms of the proposed Qualifying Purchase.




     (b) With respect to a Qualifying Purchase, the Non-Initiating Equityholders
will have the right, exercisable on delivery of written notice to the Initiating
Equityholder within 30 days after receipt of the Qualifying Purchase Notice, to
elect irrevocably to participate with the Initiating Equityholder in the Qualifying
Purchase. If any Non-Initiating Equityholder elects to participate, such
Non-Initiating Equityholder will have the right to acquire a portion of the
Qualifying Purchase Securities, on the same terms and conditions as set forth in the
Qualifying Purchase Notice, in accordance with the relative Percentage Interests of
the Initiating Equityholder and the Non-Initiating Equityholders that elect to
participate in such Qualifying Purchase. If any of the Non-Initiating Equityholders
declines to exercise its participation right under this Section 3.8(b), each of the
other participating Non-Initiating Equityholders and the Initiating Equityholder
will be entitled to acquire a portion of the Qualifying Purchase Securities in
accordance with the relative Percentage Interests of the Initiating Equityholder and
the participating Non-Initiating Equityholders.




All calculations under this subsection (b) will be made on an as-converted to Class
A Common Stock basis (i.e., each share of Class B Common Stock, plus one Unit, will
equal one share of Class A Common Stock in such calculations).




59












 






     (c) If none of the Non-Initiating Equityholders makes a timely election to
purchase the Qualifying Purchase Securities as provided in Section 3.8(b), the
Initiating Equityholder may purchase the Qualifying Purchase Securities on
arm’s-length terms at a price not lower, and on terms and conditions no more
favorable, in the aggregate, to the Initiating Equityholder than the terms and
conditions set forth in the Qualifying Purchase Notice; provided that




     (i) any material change in the terms and conditions contained in the
Qualifying Purchase Notice (that is more favorable to the Initiating
Equityholder) will constitute a new proposal for a Qualifying Purchase for
purposes of Section 3.8(a); and




     (ii) definitive documents for a Qualifying Purchase must be executed on
or prior to the 90th day following receipt of the Qualifying Purchase Notice
and consummated on or prior to the 210th day following receipt of the
Qualifying Purchase Notice, or, if the applicable regulatory approvals have
not been received by the 210th day, within five Business Days of the receipt
of any applicable regulatory approvals (but in no event more than 270 days
following the receipt of the Qualifying Purchase Notice), and if not, the
proposed Qualifying Purchase will again become subject to the rights and
obligations under this Section 3.8.




     (d) The following will apply to any Qualifying Purchase:




     (i) the purchase by the Initiating Equityholder and the Non-Initiating
Equityholders, if applicable, will be subject to the other terms and
restrictions of this Agreement, and




     (ii) any future proposed Qualifying Purchase will remain subject to the
terms and conditions of this Agreement, including this Article 3.




     (e) If both the Initiating Equityholder and one or more Non-Initiating
Equityholders elect to participate in a Qualifying Purchase in accordance with this
Section 3.8, and if the Qualifying Purchase is consummated,




     (i) subject to Section 2.1(a)(x), the number of Directors that may be
nominated by each of Sprint, Intel and the Strategic Investor Group will be
adjusted, either upward or downward as appropriate, so that the right of
each of Sprint, Intel and the Strategic Investor Group, respectively, to
nominate Directors will equal the product (rounded to the nearest whole
number) obtained by multiplying 13 by a fraction, the numerator of which is
the Percentage Interest then held by Sprint, Intel or the Strategic Investor
Group, as the case may be, and the denominator of which is the sum of the
Percentage Interests of Sprint, Intel and the Strategic Investor Group,



60









 






     (ii) this Agreement will be deemed to be amended, and the Company and
the Equityholders will take whatever action is necessary to effect such
amendment as necessary or appropriate to reflect the Qualifying Purchase,
including the following, in each case, to be effective as of the closing of
the Qualifying Purchase:




Section 2.6(b) will be amended to add the following new
clauses:




     (I) “(vi) the issuance of any Equity Securities to any
Person other than an Equityholder or its Permitted Designee,
or the admission of any new member to the LLC; and”; and




     (II) “(vii) any material change from WiMAX to another
technology standard for the Company’s business, or any other
significant technology decisions.”



     3.9 Permitted Designee.




     (a) Subject to Section 3.1, any right of an Equityholder under this Agreement
to acquire additional Equity Securities may be exercised, at the option of the
Equityholder, by a Permitted Designee of such Equityholder. If an Equityholder
desires for a Permitted Designee to acquire Equity Securities in lieu of the
Equityholder, the Equityholder will notify the Company in writing. As a condition
to such acquisition, the Equityholder will cause the Permitted Designee to execute
and deliver to the Company and each other Equityholder an Assignment and Assumption
Agreement in the form attached as Exhibit F, and upon consummation of the
acquisition of Common Stock, the Permitted Designee will be an Equityholder and will
be subject to all rights and obligations of an Equityholder owning the acquired
Equity Securities under this Agreement.




     (b) Except as provided in Section 3.12, before any Permitted Designee ceases to
qualify as a Permitted Designee of the relevant Equityholder, it will Transfer full
legal and beneficial ownership of its Equity Securities and Units (if any) to the
relevant Equityholder or, subject to this Section 3.9, another Permitted Designee of
the Equityholder. If such a Transfer is not made in accordance with the immediately
preceding sentence, then, in addition to all other remedies available at law or in
equity, any shares of Class B Common Stock held by such non-qualified Permitted
Designee will be immediately redeemed by the Company for their Par Value per share
in accordance with the terms of this Agreement and the Charter.



61









 





     3.10 Void Transfers. Any Transfer or attempted Transfer of Equity Securities in
violation of any provision of this Agreement will be void, ab initio.



     3.11 Limitations Prior to the Adjustment Date. Notwithstanding anything in this
Article 3 to the contrary, prior to the Adjustment Date:




     (a) the Equityholders (other than Eagle River) will not, and will cause their
Controlled Affiliates not to, in any manner, directly or indirectly (through an
agent, representative, or otherwise), Transfer, or enter into any Hedging
Transactions with respect to, any Equity Securities (or Units that correspond to
Equity Securities) or convert any shares of Class B Common Stock and Class B Common
Units into shares of Class A Common Stock;




     (b) none of the Equityholders will, or will permit any of its Affiliates to, in
any manner, directly or indirectly (whether through an agent, representative or
otherwise), acquire, publicly announce an intention to acquire, offer to acquire, or
agree to acquire, by purchase, gift or otherwise, any Equity Securities (or Units
that correspond to Equity Securities) or any direct or indirect interest in any
Equity Securities (including any arrangement to provide the economic performance of
all or any portion of such Equity Securities (including by means of any option,
swap, forward or other contract or arrangement the value of which is linked in whole
or in part to the value of such Equity Securities));




     (c) the Company shall not take, authorize, commit or agree to take, any of the
following actions (or publicly announce any intention to do so):




     (i) issue, deliver, grant or sell, or authorize or propose the
issuance, delivery, grant or sale of, any Equity Securities (or Units that
correspond to Equity Securities) other than any issuance of securities
described in clause (ii), (iii) or (v) of Section 3.5(f);




     (ii) repurchase, redeem or otherwise acquire any shares of any Equity
Securities (or Units that correspond to Equity Securities), except
for any repurchase or redemption deemed to occur upon any “cashless
exercise” in connection with the issuance of any securities described in
clause (ii) or (v) of Section 3.5(f); or




     (iii) declare, set aside for payment or pay any dividends on or make
other distributions (whether in cash, stock or property) in respect of any
Equity Securities (or Units that correspond to Equity Securities).



     3.12 Holding Company Transfers. Notwithstanding anything to the contrary in this
Agreement:




     (a) Any Transfer that is permitted under this Article 3 (other than a Holding
Company Exchange under Section 7.9(h) of the Operating Agreement) may, at the option
of an Equityholder that is a Securities Holding Company, be



62









 






effected as a transfer
by the holder of 100% of the securities of such Securities Holding Company (a
“Securities Holding Company Stockholder”) of all of its securities in such
Securities Holding Company (a “Holding Company Transfer”).




     (b) For the avoidance of doubt, (i) prior to effecting any Holding Company
Transfer, the transferor must comply, mutatis mutandis, with the provisions of (x)
Section 3.3 by offering to the Non-Selling Equityholders the opportunity to purchase
directly the Equity Securities held by the Securities Holding Company that is the
subject of the proposed Holding Company Transfer (as opposed to the equity
securities of the Securities Holding Company) and (y) Section 3.4, and (ii) any
Tag-Along Equityholder may propose that a Transfer of its Equity Securities pursuant
to Section 3.4 be effected as a Holding Company Transfer of the Securities Holding
Company holding such Tag-Along Equityholder’s Equity Securities, but such proposal
will not be binding upon the transferee, in which case such Tag-Along Equityholder
may Transfer its Equity Securities in the Tag-Along Sale. Notwithstanding Section
3.3(c)(ii), the price paid for securities of the Securities Holding Company in a
transfer to a transferee (other than a Non-Selling Equityholder) will be not lower
than the product of (x) the transfer price proposed to the Non-Selling Equityholders
in the Interest Notice (assuming that 100% of the Securities Holding Company is
being transferred) and (y) the number of shares of Subject Stock held by the
Securities Holding Company. The purchase price to be received by any Tag-Along
Equityholder pursuant to Section 3.4 in a Holding Company Transfer will equal the
quotient of (x) the aggregate consideration received for the equity securities of
the Securities Holding Company being transferred (assuming that 100% of the
Securities Holding Company is being transferred) divided by (y) the number of Equity
Securities held by the Securities Holding Company.




     (c) If a Holding Company Transfer is effected pursuant to this Section 3.12 in
connection with a Transfer pursuant to Section 3.3(b)(i) or Section 3.4, the
Securities Holding Company Stockholder and its Affiliates will be responsible for,
and will indemnify and hold the transferee and each of its Affiliates harmless
against, (i) Tax of a Securities Holding Company incurred in such Holding
Company Transfer and (ii) all liabilities of the Securities Holding Company and its
Affiliates (including liabilities for Taxes not described in clause (i)) to the
extent such liabilities are attributable to periods through and including the date
of the Holding Company Transfer (except to the extent attributable to the period
after the closing of the Holding Company Transfer), including any liability of the
Securities Holding Company arising by reason of being a member of an affiliated,
combined, consolidated or other Tax group on or prior to the Holding Company
Transfer.



ARTICLE 4




MISCELLANEOUS




63









 





     4.1 Parent Guaranty. On the Effective Date, each Parent has executed and delivered
the Guaranty to the Company and the other Equityholders.



     4.2 Termination. Subject to the early termination of any provision (a) as a result of
an amendment to this Agreement agreed to by the Company and the Equityholders as provided under
Section 4.3 or (b) as provided in accordance with its terms, this Agreement will terminate with
respect to each Equityholder when that Equityholder no longer owns any Equity Securities of the
Company; except that Sections 3.10, 4.5, 4.7, 4.9, 4.10, 4.13, 4.15, and 4.17 through 4.20 of this
Agreement will not terminate and will survive any termination of this Agreement. No such
termination will relieve any party from any liability for the breach of any of the agreements set
forth in this Agreement.



     4.3 Amendments and Waivers. Except as otherwise provided in this Agreement, no
modification, amendment or waiver of any provision of this Agreement will be effective without the
written approval of the Company, the Strategic Investor Representative (on behalf of the Strategic
Investor Group) and each other Equityholder, except that any Equityholder may waive (in writing)
the benefit of any provision of this Agreement with respect to itself for any purpose. No failure
or delay by any party in exercising any right, power or privilege hereunder (other than a failure
or delay beyond a period of time specified in this Agreement) will operate as a waiver of that
right, power or privilege, nor will any single or partial exercise of any right, power or privilege
preclude any other or further exercise of the right, power or privilege, or the exercise of any
other right, power or privilege. The rights and remedies provided in this Agreement will be
cumulative and not exclusive of any rights or remedies provided by Law.



     4.4 Successors, Assigns and Transferees; Groups and Thresholds.




     (a) This Agreement will bind and inure to the benefit of and be enforceable by
the parties to this Agreement and their respective successors (whether by merger,
operation of law or otherwise) and permitted assigns.




     (b) Whether or not so stated in the relevant provisions of this Agreement, (i)
references to Sprint, Eagle River, Intel or any Strategic Investor shall be deemed
to include their respective Permitted Transferees and Permitted Designees, (ii) all
amounts, thresholds or similar metrics applicable to Sprint, Eagle River, Intel, any
Strategic Investor or the Strategic Investor Group shall be determined or measured
(x) without duplication, by reference to the relevant Person and its Permitted
Transferees (excluding, in the case of a Strategic Investor, any Permitted
Transferee of the kind described in clause (ii) of the definition thereof) and
Permitted Designees as a group and (y) taking into account the effect of any
Recapitalization Events and (iii) references to a Person or group owning a number of
shares of Common Stock equal to at least a specified percentage of such Person’s or
group’s Original Shares shall be deemed to refer to ownership of a number of shares
of Common Stock without regard to class.



64









 





     4.5 Legend.




     (a) All certificates or book entries, as the case may be, representing the
Equity Securities held by each Equityholder will bear a legend substantially in the
following form:




The securities represented by this [certificate][book entry] are subject to an
Equityholders’ Agreement dated as of [                    ], 200[  ] (a copy of which is on
file with the Secretary of the Company). No transfer, sale, assignment, pledge,
hypothecation or other disposition of the securities represented by this
[certificate][book entry] may be made except in accordance with the provisions of
the Equityholders’ Agreement and (a) under a registration statement effective under
the Securities Act of 1933, as amended, or (b) under an exemption from registration
thereunder. The holder of the securities represented by this [certificate][book
entry], by acceptance of the securities, agrees to be bound by all of the provisions
of the Equityholders’ Agreement.




     (b) (i) On the sale of any Equity Securities to a person other than a Permitted
Transferee under an effective registration statement under the Securities Act or
under Rule 144 under the Securities Act or (ii) on and after the termination of this
Agreement, the certificates or book entries representing those Equity Securities
will be replaced, at the expense of the Company, with certificates or book entries
not bearing the applicable legends required by this Section 4.5, except that the
Company may condition the replacement of certificates or book entries under clause
(i) on the receipt of an opinion of securities counsel reasonably satisfactory to
the Company.



     4.6 Notices. 




     (a) All notices and other communications required or permitted under this
Agreement will be in writing and will be deemed effectively given:




     (i) when personally delivered to the party to be notified;




     (ii) when sent by confirmed facsimile if sent during normal business
hours of the recipient or, if not, then on the next Business Day, as long as
a copy of the notice is also sent via nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt;




     (iii) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or




     (iv) one Business Day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification
of receipt.



65









 






     (b) Any notice or other communication that is to be sent by or delivered to the
Strategic Investor Group under this Agreement will be sent by or delivered to the
Strategic Investor Representative. In addition, in order to facilitate the
administration of this Agreement, if any of Eagle River, Sprint or Intel Transfers
any of its Equity Securities to a Permitted Transferee, or causes any Equity
Securities to be issued to a Permitted Designee, such Equityholder will, by notice
to the Company and the other Equityholders, designate a single entity (which must be
one of its Controlled Affiliates) to send and receive all notices and other
communications under this Agreement that are to be sent to or delivered by such
Equityholder, and to exercise all of such Equityholder’s rights hereunder.




     (c) All communications will be sent to the party’s address as set forth below
or at another address that the party has furnished to each other party in writing in
accordance with this provision:


If to the Company:



NEWCO CORPORATION

4400 Carillon Point

Kirkland, Washington 98033

Attention: Vice-President Corporate Development

Facsimile No.: (425) 216-7766



with copies (which will not constitute notice) to:



NEWCO CORPORATION

4400 Carillon Point

Kirkland, Washington 98033

Attention: General Counsel

Facsimile No.: (425) 216-7766



Kirkland & Ellis LLP

Citigroup Center

153 East 53rd Street

New York, New York 10022

Attention: Joshua N. Korff

Facsimile No.: (212) 446-6460



Davis Wright Tremaine LLP

1201 Third Avenue, Suite 2200

Seattle, Washington 98101

Attention: Sarah English Tune

Facsimile No.: (206) 757-7161



If to Sprint:





66









 







Sprint Nextel Corporation

2001 Edmund Halley Drive

Reston, Virginia 20191

Attention: Senior Vice President Corporate Development and Spectrum

Facsimile No.: (703) 433-4406



with copies to (which will not constitute notice) to:



Sprint Nextel Corporation

6200 Sprint Parkway

Overland Park, Kansas 66251

Attention: Corporate Secretary

Facsimile No.: (913) 523-9797



King & Spalding LLP

1180 Peachtree Street, N.E.

Atlanta, Georgia 30309

Attention: Michael J. Egan

Facsimile No.: (404) 572-5100



If to Eagle River:



Eagle River

2300 Carillon Point

Kirkland, WA 98033

Attention: Chief Executive Officer

Facsimile No: (425) 828-8061



If to the Strategic Investors:



with a copy (which will not constitute notice) to:



If to Intel:



Intel Corporation

2200 Mission College Blvd., MS RN6-65

Santa Clara, California 95054-1549

Attention: President, Intel Capital

Facsimile No.: (408) 765-8871



Intel Corporation

2200 Mission College Blvd., MS RN6-59




67









 







Santa Clara, California 95054-1549

Attention: Intel Capital Portfolio Manager

Facsimile No.: (408) 765-6038

 

Intel Corporation

2200 Mission College Blvd., MS RN4-151

Santa Clara, California 95054-1549

Attention: Intel Capital Group General Counsel

Facsimile No.: (408) 653-9098

 

Intel Corporation

2200 Mission College Blvd., MS RN5-125

Santa Clara, California 95054-1549

Attention: Director, U.S. Tax and Trade

Facsimile No.: (408) 765-1733



with copies (which will not constitute notice) to:



Gibson, Dunn & Crutcher LLP

1881 Page Mill Road

Palo Alto, California 94304

Attention: Gregory T. Davidson

Facsimile No.: (650) 849-5050



Gibson, Dunn & Crutcher LLP

333 South Grand Avenue

Los Angeles, California 90071-3197

Attention: Paul S. Issler

Facsimile No.: (213) 229-6763




     4.7 Confidentiality. 




     (a) Each Equityholder agrees that Confidential Information has been and may in
the future be made available in connection with such Equityholder’s investment in
the Company. Each Equityholder acknowledges and agrees that it shall not disclose
any Confidential Information to any Person or use any Confidential Information,
except that Confidential Information (x) may be used solely in connection with the
Equityholder’s investment in the Company and the LLC and not in connection with any
of its other business operations and (y) may be disclosed:




     (i) to such Equityholder’s Representatives in the normal course of the
performance of their duties,




     (ii) to the extent required by Law, rule or regulation (including
complying with any oral or written questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar



68









 






process to which an Equityholder is subject, provided that such Equityholder
agrees to give the Company prompt notice of such request(s), to the extent
practicable, so that the Company may seek an appropriate protective order or
similar relief (and the Equityholder shall cooperate with such efforts by
the Company, and shall in any event make only the minimum disclosure
required by such Law, rule or regulation)),




     (iii) to any Person with whom such Equityholder is contemplating a
financing transaction or to whom such Equityholder is contemplating a
Transfer of its Equity Securities, provided that such Transfer would not be
in violation of the provisions of this Agreement and such potential
transferee is advised of the confidential nature of such information and
agrees to be bound by a confidentiality agreement consistent with the
provisions hereof,




     (iv) to any regulatory authority or rating agency to which such
Equityholder or any of its Affiliates is subject or with which it has
regular dealings, as long as such authority or agency is advised of the
confidential nature of such information,




     (v) to the extent related to the tax treatment and tax structure of the
transactions contemplated by this Agreement (including all materials of any
kind, such as opinions or other tax analyses that the Company, its
Affiliates or its Representatives have provided to such Equityholder
relating to such tax treatment and tax structure), provided that the
foregoing does not constitute an authorization to disclose the identity of
any existing or future party to the transactions contemplated by this
Agreement or their Affiliates or Representatives, or, except to the extent
relating to such tax structure or tax treatment, any specific pricing terms
or commercial or financial information,




     (vi) in the case of the Strategic Investor Representative or any member
of the Strategic Investor Group, to any other member of the Strategic
Investor Group, or




     (vii) if the prior written consent of the Board shall have been
obtained.




     (b) Nothing contained herein shall prevent the use (subject, to the extent
possible, to a protective order) of Confidential Information in connection with the
assertion or defense of any claim by or against the Company or any of its
Subsidiaries or any Equityholder.




     (c) “Confidential Information” means any information concerning the
Company or any Persons that are or become its Subsidiaries or the financial
condition, business, operations or prospects of the Company or any such Persons in
the possession of or furnished to any Equityholder under this Agreement,



69









 






provided that the term “Confidential Information” does not include information that (i) is or
becomes generally available to the public other than as a result of a disclosure by
an Equityholder or its affiliates, directors, officers, employees, stockholders,
members, partners, agents, counsel, auditors, investment advisers or other
representatives (all such persons being collectively referred to as
“Representatives”) in violation of this Agreement, (ii) was available to
such Equityholder on a non-confidential basis prior to its disclosure to such
Equityholder or its Representatives by the Company, (iii) becomes available to such
Equityholder on a non-confidential basis from a source other than the Company after
the disclosure of such information to such Equityholder or its Representatives by
the Company, which source is (at the time of receipt of the relevant information)
not, to the best of such Equityholder’s knowledge, bound by a confidentiality
agreement with (or other confidentiality obligation to) the Company or another
Person, (iv) is independently developed by such Equityholder without violating any
confidentiality agreement with, or other obligation of secrecy to, the Company or
(v) is received by an Equityholder under or in connection with other commercial
contracts, agreements or arrangements with the Company (which information shall be
governed by the terms of those contracts, agreements or arrangements).



     4.8 Accounting Policies. If Sprint is required at any point to consolidate with the
Company and the LLC for accounting purposes, subject to Law and the fiduciary duties of the Board,
the accounting policies of the Company and the LLC will be consistent with the accounting policies
of Sprint as long as the policies comply with GAAP in the reasonable opinion of the Company.



     4.9 Strategic Investor Representative; Strategic Investor Agreement. 




     (a) Each Strategic Investor hereby acknowledges that the Strategic Investor
Representative is authorized to take all actions that are designated herein
to be performed by the Strategic Investor Group, as a group, and to do or
refrain from doing all further acts and things, and to execute all documents, as the
Strategic Investor Representative deems necessary or appropriate in furtherance of
any of the foregoing, including:




     (i) to receive and deliver all notices, communications and deliveries
on behalf of the Strategic Investor Group under this Agreement;




     (ii) to provide consent, on behalf of the Strategic Investor Group, for
any matter that requires the consent of the Strategic Investor Group under
this Agreement; and




     (iii) to exercise any right or election on behalf of the Strategic
Investor Group under this Agreement.




     (b) The Company and each Equityholder (other than the Strategic Investors) may
conclusively and absolutely rely, without inquiry, on any actions



70









 






of the Strategic
Investor Representative authorized under this Agreement as the acts of the Strategic
Investor Group in all matters referred to in this Agreement.




     (c) Each of the Strategic Investors hereby expressly acknowledges and agrees
that the Strategic Investor Representative is authorized to act on behalf of the
Strategic Investor Group notwithstanding any dispute or disagreement among the
Strategic Investors, and that the Company and any Equityholder (other than the
Strategic Investors) is entitled to rely on any and all action by the Strategic
Investor Representative specifically authorized under this Agreement without
liability to, or obligation to inquire of, any of the Strategic Investors. The
Strategic Investor Representative may, at any time upon notice to the Company and
the other Equityholders (upon which notice the Company and the other Equityholders
will be entitled to rely), appoint a substitute or replacement Strategic Investor
Representative.




     (d) Without in any way limiting the rights of the Company and the Equityholders
(other than the Strategic Investors), under this Section 4.9 or otherwise, to rely
on any and all action by the Strategic Investor Representative pursuant to this
Agreement, each Strategic Investor expressly acknowledges and agrees that the
appointment of the Strategic Investor Representative pursuant to Section 4.9(a)
above, and all of the rights, obligations, power and authority of the Strategic
Investor under this Agreement, are subject in all respects to the Strategic Investor
Agreement.




     (e) The Strategic Investor Representative will deliver to each other party
hereto a copy of any amendment to the Strategic Investor Agreement with reasonable
promptness following the execution of any such amendment.



71









 





     4.10 No Joint and Several Liability of the Equityholders. The Company and each
Equityholder acknowledge and agree that under no circumstances will any Equityholder be held
jointly or severally liable for the breach of any provision of this Agreement by any other
Equityholder or the Strategic Investor Representative (it being understood that this Section 4.10
shall not otherwise limit the liability of any Equityholder for its own breaches of this
Agreement); provided that, in the event of any breach of this Agreement by the Strategic Investor
Representative (acting in its capacity as such), each Strategic Investor shall be severally liable
for a portion of any liability, loss, cost, damage or expense (including attorneys’ fees) arising
from or in connection with such breach that is equal to such Strategic Investor’s Percentage
Interest divided by the aggregate Percentage Interest of the Strategic Investor Group.



     4.11 Further Assurances. At any time or from time to time after the Effective Date,
the parties will cooperate with each other as may be reasonably requested, and at the request of
any other party, will execute and deliver any further instruments or documents and, to the fullest
extent permitted by Law, will take all further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions contemplated by this Agreement
and to otherwise carry out the agreements and the intent of the parties under this Agreement.



     4.12 Entire Agreement. Except as otherwise expressly set forth in this Agreement,
this Agreement, together with the other Transaction Documents (and, as among the Strategic
Investors only, the Strategic Investor Agreement), embodies the complete agreement and
understanding among the parties to this Agreement with respect to the subject matter of this
Agreement and supersedes and preempts any prior understandings, agreements or representations by or
among the parties, written or oral, that may have related to the subject matter of this Agreement
in any way.



     4.13 Enabling Clause. The Company will cause the Charter, the Bylaws and the
Operating Agreement to give effect to the terms and provisions contained in this Agreement to the
extent permitted by Law. Each of the parties will vote its Voting Securities and take any other
action reasonably requested by the Company or any Equityholder to amend the Charter, the Bylaws and
the Operating Agreement so as to give full effect to and to avoid any conflict with the provisions
of this Agreement, all to the extent permitted by Law.



     4.14 Delays or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any party, upon any breach, default or noncompliance by another party under this
Agreement, will impair any right, power or remedy of any non-breaching and non-defaulting party,
nor will it be construed to be a waiver of any breach, default or noncompliance, or any
acquiescence in it, or of or in any similar breach, default or noncompliance later occurring. Any
waiver, permit, consent
or approval of any kind or character on the part of any party to this Agreement of any breach,
default or noncompliance under this Agreement or any waiver on that party’s part of any provisions
or conditions of this Agreement, must be in writing and will be effective only to the extent
specifically set forth in that writing and to the extent permitted under this Agreement. No waiver
of any default with respect to any provision, condition or requirement of this Agreement will be
deemed to be a continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof. All remedies, either under this Agreement, by Law, or otherwise afforded to
any party, will be cumulative and not alternative.



72









 





     4.15 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement will be
governed in all respects by the laws of the State of Delaware. No suit, action or proceeding with
respect to this Agreement may be brought in any court or before any similar authority other than in
a court of competent jurisdiction in the State of Delaware, and the parties to this Agreement
submit to the exclusive jurisdiction of those courts for the purpose of a suit, proceeding or
judgment. Each party to this Agreement irrevocably waives any right it may have had to bring an
action in any other court, domestic or foreign, or before any similar domestic or foreign
authority. Each of the parties to this Agreement irrevocably and unconditionally waives trial by
jury in any legal action or proceeding (including any counterclaim) in relation to this Agreement.



     4.16 Severability. When possible, each provision of this Agreement will be
interpreted so as to be effective and valid under Law, but if any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect under any Law in any jurisdiction, that
invalidity, illegality or unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in that jurisdiction as
if the invalid, illegal or unenforceable provision had never been contained in this Agreement and
the parties to this Agreement will use their Reasonable Best Efforts to find and employ an
alternative means to achieve the same or substantially the same result as that contemplated by that
provision.



     4.17 Enforcement. Each party to this Agreement acknowledges that money damages would
not be an adequate remedy if any of the covenants or agreements in this Agreement, including
Sections 2.13 and 2.14, are not performed in accordance with its terms. If a party seeks an
injunction, temporary restraining order or other equitable relief in any court of competent
jurisdiction to enjoin an alleged breach and enforce specifically the terms and provisions of this
Agreement, including Sections 2.13 and 2.14, the other parties will not raise the defense of an
adequate remedy at law.



     4.18 No Recourse. Except as provided in any Guaranty, neither the Company nor any
Equityholder will whether by the enforcement of any assessment or by any legal or equitable
proceeding, or by virtue of any Law, seek to hold liable under this Agreement or any documents or
instruments
delivered in connection with this Agreement, any current or future stockholder, director,
officer, employee, general or limited partner or member of any Equityholder or of any Affiliate or
assignee thereof. No current or future officer, agent or employee of any Equityholder or any
current or future member of any Equityholder or any current or future stockholder, director,
officer, employee, partner or member of any Equityholder or of any Affiliate or assignee thereof,
will have any personal liability whatsoever for any obligation of any Equityholder under this
Agreement or any documents or instruments delivered in connection with this Agreement for any claim
based on, in respect of or by reason of those obligations or their creation.



     4.19 No Third Party Beneficiaries. This Agreement is entered into solely for the
benefit of the Equityholders, their respective Permitted Transferees, Permitted Designees and
successors (whether by merger, operation of law or otherwise) and permitted assigns, and except
that any current or former director or officer of the Company may enforce Section 2.1(j), no other
Person may exercise any right or enforce any obligation under this Agreement.



73









 





     4.20 Counterparts; Facsimile Signatures. This Agreement may be executed in any number
of counterparts, each of which will be an original, but all of which together will constitute one
instrument. This Agreement may be executed by facsimile or pdf signature(s).



     4.21 Interpretation. Unless the context of this Agreement otherwise clearly requires,




     (a) references to the plural include the singular, and references to the singular
include the plural,




     (b) the words “include,” “includes” and “including” do not limit the preceding terms or
words and will be deemed to be followed by the words “without limitation,”




     (c) the terms “day” and “days” mean and refer to calendar day(s), and




     (d) the terms “year” and “years” mean and refer to calendar year(s).



     Unless otherwise set forth in this Agreement, references in this Agreement to




     (i) any document, instrument or agreement (including this Agreement)




     (A) includes and incorporates all Schedules and Exhibits,




     (B) includes all documents, instruments or agreements issued or
executed in replacement of those documents, instruments or agreements, and




     (C) means the document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified or supplemented from time to time
in accordance with its terms and in effect at any given time, and




     (D) all Article, Section and Exhibit references in this Agreement are
to Articles, Sections and Exhibits of this Agreement, unless otherwise
specified. This Agreement will not be construed as if prepared by one of
the parties, but rather according to its fair meaning as a whole, as if all
parties had prepared it.



[Rest of page intentionally left blank]




74









 





     IN WITNESS WHEREOF, the parties to this Agreement have executed this Equityholders’ Agreement
as of the date set forth in the first paragraph hereof.



	 	 	 	 	 	 	 
	 	 	NEWCO CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[SPRINT]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[EAGLE RIVER HOLDINGS, LLC]	 	 
	 

	 	By:
	 	Eagle River Inc., its Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[INTEL]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[COMCAST]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






75









 






	 	 	 	 	 	 	 
	 	 	[GOOGLE INC.]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[TIME WARNER CABLE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[BHN SPECTRUM INVESTMENTS, LLC]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[                    ],	 	 
	 	 	as the Strategic Investor Representative	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






76









 





Exhibit A




Definitions




     As used in this Agreement, the following terms have the following meanings:



     “2.5 GHz Spectrum” means any spectrum in the 2495-2690 MHz band authorized by the FCC
under licenses for BRS or EBS.



     “25% Transferee” is defined in Section 2.1(a)(vii).



     “Adjustment Date” has the meaning set forth in the Transaction Agreement.



     “Affiliate” means, with respect to any Person, any other Person directly or indirectly
Controlling or Controlled by or under direct or indirect common Control with that Person; provided
that neither the Company nor any of its Subsidiaries shall be deemed to be an Affiliate of any
Equityholder.



     “Alternative New Securities” is defined in Section 3.5(c)(ii).



     “Alternative Units” is defined in Section 3.5(c)(ii)



     “Alternative Voting Securities” is defined in Section 3.5(c)(i).



     “Ancillary Agreements” has the meaning set forth in the Transaction Agreement.



     “Approval Equityholder” is defined in Section 2.7(e).



     “Audit Committee” is defined in Section 2.3(a).



     “Available Seats” means, at any time, (i) 13 less (ii) the number of Independent
Designees at such time less (iii) one, if there is then a Eagle River Designee, less (iv) the
number of Equityholder Designees (excluding the Eagle River Designee), if any, that were nominated
by Equityholders other than the Equityholders whose Board nomination rights are being adjusted
pursuant to Section 2.1 or Section 3.8 at such time.



     “Bankruptcy” means, with respect to any Person,




     (i) to apply for, consent to, or acquiesce in, the appointment of a trustee, receiver,
sequestrator or other custodian for that Person or any property of that Person, or make a
general assignment for the benefit of creditors;




     (ii) in the absence of an application, consent or acquiescence, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator or other custodian for that
Person or for a substantial part of the property of that Person;



A-1









 






          (iii) to permit or suffer to exist the commencement of any bankruptcy, reorganization,
debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of that Person; or




     (iv) take any corporate or company action authorizing, or in furtherance of, any of the
foregoing.



     “beneficial owner” or “beneficially own” has the meaning given in Rule 13d-3 under the
Exchange Act and a Person’s beneficial ownership of securities of any Person will be calculated in
accordance with the provisions of that Rule, except that for purposes of determining beneficial
ownership, no Person will be deemed to beneficially own any security solely as a result of that
Person’s execution of this Agreement or the Operating Agreement.



     “BHN” is defined in the preamble.



     “BHN Observer” is defined in Section 2.1(a)(iv)(C).



     “BHN Original Shares” means the number of shares of Common Stock acquired by BHN on
the Effective Date pursuant to Section 4.1 of the Transaction Agreement, subject to adjustment (i)
as set forth in Section 4.3 of the Transaction Agreement and (ii) for Recapitalization Events.



     “Board” means the Board of Directors of the Company.



     “BRS” means Broadband Radio Service, a radio service licensed by the FCC under Part 27
of Title 47 of the Code of Federal Regulations, as amended and interpreted by the FCC, which can be
used to provide fixed and mobile wireless services.



     “Business Day” means any day that is not a Saturday, a Sunday or other day that banks
are required or authorized by Law to be closed in New York City.



     “Business Purpose of the Company” means




     (i) holding a membership interest in the LLC,




     (ii) serving as Managing Member of the LLC under the LLC Agreement,




     (iii) in its capacity as Managing Member of the LLC, causing the LLC to




     (A) develop, own and operate a Wireless Broadband Network utilizing 2.5 GHz
Spectrum, and other spectrum that is used in an ancillary manner to such 2.5 GHz
Spectrum, primarily within the United States,




     (B) develop, own and operate comparable networks using wireless broadband
technology outside the United States as necessary to maintain the assets and
operations outside the United States in existence as of the date hereof, and



A-2









 






     (C) market, promote and sell all types and categories of wireless
communications services and associated products (whether now existing or developed
and implemented in the future), including services and products that are (x)
designed as products and services to be offered as the products and services of the
Wireless Broadband Network or (y) bundled with or complementary to the products and
services of the Wireless Broadband Network,




     (iv) engaging in such other business activities as may be approved by the Board from
time to time, and




     (v) conducting activities incidental to the activities described in clauses (i) through
(iv) above.



     “Bylaws” means the Bylaws of the Company as in effect on the Effective Date, as they
may be amended, supplemented or otherwise modified from time to time in accordance with their
terms, the terms of the Charter and the terms of this Agreement.



     “Change of Control” means, with respect to any Person, any of the following events:




          (i) the sale of more than a majority (or in the case of the Company or the LLC, the
Specified Percentage) of the consolidated assets of that Person and its Subsidiaries;




          (ii) any merger, consolidation, share exchange, recapitalization, sale, issuance,
disposition, transfer of capital stock or other transaction, in each case in which any
Person or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
(other than, in the case of the Company or the LLC, Sprint, Intel, the Strategic Investors
and their respective Permitted Transferees and Permitted Designees, singly or in a group)
acquires beneficial ownership of more than a majority (or, in the case of the Company or the
LLC, the Specified Percentage) of either




     (A) the then-outstanding shares of that Person’s common stock or equivalent
securities (determined on an as-converted basis), or




     (B) the combined voting power of the then-outstanding voting securities of that
Person entitled to vote generally in the election of directors; or




          (iii) during any period of 24 consecutive months, a majority of the members of the
board of directors or other equivalent governing body of such Person cease to be composed of
individuals (A) who were members of that board or equivalent governing body on the first day
of such period, (B) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (A) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or (C)
whose election or nomination to that board or other equivalent governing body was approved
by individuals referred to in clauses (A) and (B) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body;
provided, however, that, in the case of the Company, a member of the Board who differs from
the individual who was a member of the Board




A-3











 






on the first day of the applicable period will be deemed to have been a member on the
first day of the applicable period if such member was nominated or otherwise designated by
the same Equityholder as appointed the original member in accordance with Section 2.1.



     “Charter” means the Restated Certificate of Incorporation of the Company, as in effect
on the Effective Date and as it may be amended, supplemented or otherwise modified from time to
time in accordance with its terms and the terms of this Agreement.



     “Class A Common Stock” means Class A common stock, par value $0.0001 per share, of the
Company, which is entitled to the voting and other rights described in the Charter.



     “Class B Common Stock” means Class B common stock, par value $0.0001 per share, of the
Company, which is entitled to the voting and other rights described in the Charter.



     “Clearwire” is defined in the recitals.



     “Clearwire Sub LLC” is defined in the recitals.



     “Closing” has the meaning set forth in the Transaction Agreement.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     “Comcast” is defined in the preamble.



     “Common Stock” means any and all classes of the Company’s common stock as authorized
pursuant to the Charter, including the Class A Common Stock and the Class B Common Stock.



     “Company” is defined in the preamble.



     “Compensation Committee” is defined in Section 2.3(c).



     “Compliance Certificate” is defined in Section 2.13(b).



     “Compliance Notice” is defined in Section 2.13(a).



     “Confidential Information” is defined in Section 4.7(c).



     “Consenting Equityholder” is defined in Section 2.7(c).



     “Control” (including the correlative terms “Controlling”, “Controlled
by” and “under common Control with”) means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.



     “Controlled Affiliate” of an Equityholder means



          (i) each direct or indirect Subsidiary of that Equityholder and of that




A-4









 





     Equityholder’s Parent,




     (ii) any Affiliate of the Equityholder that the Equityholder (or its Parent) can
directly or indirectly unilaterally cause to take or refrain from taking any of the actions
required, prohibited or otherwise restricted by this Agreement; and




     (iii) such Equityholder’s Parent.


provided that neither the Company nor any of it Subsidiaries will be deemed to be a Controlled
Affiliate of any Equityholder.




     “Director” means any member of the Board.



     “Eagle River” is defined in the preamble.



     “Eagle River Designee” is defined in Section 2.1(a)(ii).



     “Eagle River Observer” is defined in Section 2.1(a)(ii)(B).



     “Eagle River Original Shares” means 38,557,957 shares of Common Stock, as adjusted for
Recapitalization Events.



     “EBS” means Educational Broadband Service, a fixed or mobile service, the licensees of
which are educational institutions or non-profit educational organizations, and intended primarily
for video, data, or voice transmissions of instructional, cultural, and other types of educational
material licensed by the FCC under Part 27 of Title 47 of the Code of Federal Regulations, as
amended and interpreted by the FCC.



     “Effective Date” is defined in the preamble.



     “Equity Securities” means any and all shares of common stock of the Company and any
securities issued in respect thereof, including




     (i) Common Stock,




     (ii) securities of the Company convertible into, or exchangeable for, shares of Common
Stock, and options, warrants or other rights to acquire shares of Common Stock; and




     (iii) any securities issued in substitution for the securities described in clauses (i)
and (ii) above in connection with any Recapitalization Event.



     “Equityholder” has the meaning set forth in the recitals; provided that, for purposes
of Sections 2.1(b), 2.1(g), 2.1(h) and 2.3(d) only, the term “Equityholder”, when used in reference
to a Strategic Investor, will be deemed to refer to the Strategic Investor Group.



     “Equityholder Designees” means, collectively, the Director(s), including the Investor
Independent Designee, that each Equityholder is entitled to nominate pursuant to Section 2.1(a).



A-5









 





     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.



     “Excluded Transfer” is defined in Section 3.3(g).



     “Existing Intel Shares” means the shares of Class A Common Stock issued to Intel in
the Merger (and any securities issued with respect to such shares in all subsequent
Recapitalization Events).



     “GAAP” means generally accepted accounting principles, as in effect in the United
States of America from time to time.



     “Google” is defined in the preamble.



     “Guaranty” means the Parent Agreement attached to this Agreement as Exhibit G.



     “Hedging Transactions” means engaging in short sales, zero cost collars, equity swaps,
prepaid variable forward contracts, or the purchase and sale of puts and calls or other derivative
securities, so long as (i) the applicable Equityholder retains beneficial ownership of the Equity
Securities underlying such Hedging Transactions within the meaning of Rule 13d-3 of the Exchange
Act and (ii) such Hedging Transactions are not permitted to be settled in securities, and are
settled solely in cash.



     “Holding Company Transfer” is defined in Section 3.12.



     “Incentive Plan” means any equity incentive or similar plan or agreement under which
the Company may issue shares of Class A Common Stock or other Equity Securities to existing and
former directors, officers, employees and other Persons providing services to the Company and its
Subsidiaries from time to time.



     “Indebtedness” of the Company or any of its Subsidiaries means, without duplication,
(a) all obligations for borrowed money (whether by loan, the issuance and sale of debt securities
or the sale of property to another Person subject to an understanding or agreement, contingent or
otherwise, to repurchase such property from such Person), (b) all obligations evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations under conditional sale or other title
retention agreements relating to property acquired by the Company or any of its Subsidiaries, (d)
all obligations in respect of the deferred purchase price of property or services (excluding
accounts payable incurred in the ordinary course of business), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any lien on property owned or acquired by the Company or any of its
Subsidiaries, whether or not the Indebtedness secured thereby has been assumed, (f) all guarantees
by the Company or any Subsidiary of Indebtedness of others, (g) all capital lease obligations, (h)
all obligations, contingent or otherwise, as an account party in respect of letters of credit and
letters of guaranty, (i) all obligations, contingent or otherwise, in respect of bankers’
acceptances and (j) any other obligation, the incurrence of which is subject to restriction under
any Sprint Senior Debt Agreement. However, Indebtedness does not include a draw-down on a
revolving line of credit that has been the subject of a Revolver Quarterly Notice unless the



A-6









 




Company intends to draw an amount on such line of credit in excess of the amount set forth in
such Revolver Quarterly Notice.




     “Independent Designee” is defined in Section 2.1(a).



     “Independent Director” means an “independent director” as that term is used in the
listing rules or requirements of NASDAQ or any other listing rules or requirements, if applicable,
and any rules or requirements under Law.



     “Initial Independent Designee” is defined in Section 2.1(a).



     “Initiating Equityholder” is defined in Section 3.8(a).



     “Intel” is defined in the preamble.



     “Intel Agreement” has the meaning set forth in the Transaction Agreement.



     “Intel Designee” is defined in Section 2.1(a).



     “Intel Observer” is defined in Section 2.1(a)(iii)(C).



     “Intel Original Shares” means the number of shares of Common Stock acquired by Intel
on the Effective Date pursuant to Section 4.1 of the Transaction Agreement, subject to adjustment
(i) as set forth in Section 4.3 of the Transaction Agreement and (ii) for Recapitalization Events.



     “Intel Restricted Entity” means any of the following (including any Controlled
Affiliate of the following and any successor (whether by merger, operation of law or otherwise) to
any of the following or any of their respective Controlled Affiliates): Vodafone Group, NTT
DoCoMo, Inc., AT&T Inc., Verizon Communications Inc. and Verizon Wireless.



     “Interest Notice” is defined in Section 3.3(a).



     “Investor Independent Designee” is defined in Section 2.1(a)(v).



     “Investor Securities Holding Company” means any entity (other than the Company or any
of its Subsidiaries) that (i) is taxable as a corporation for U.S. federal income tax purposes,
(ii) holds no material assets other than an equal number of Units and shares of Class B Common
Stock, (iii) at all times since its existence has held no material assets other than assets
transferred to or from the LLC (and earnings thereon) and an equal number of (A) Units and (B)
either (1) shares of Class B Common Stock or (2) Voting Units (as defined in the Operating
Agreement), and (iv) has conducted no business or other activities other than those related to its
ownership of such Units and Class B Common Stock.



     “Law” means any applicable foreign or domestic, federal, state or local, statute,
ordinance, rule, regulation, code, license, permit, authorization, approval, consent, order,
judgment, decree, injunction or requirement of any Governmental Authority or any arbitration
tribunal. For the purposes of this definition, “Governmental Authority” means any (i)
nation,



A-7









 




state, county, city, town, village, district or other jurisdiction of any nature; (ii)
federal, state, local, municipal, or other government; (iii) governmental or quasi-governmental
authority of any nature; or (iv) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory or taxing power or authority of any nature.




     “LLC” is defined in the recitals.



     “Merger” is defined in the recitals.



     “NASDAQ” means The NASDAQ Stock Market, LLC or other stock exchange or securities
market on which the Common Stock is at any time listed or quoted.



     “New Securities” is defined in Section 3.5(f).



     “New Securities Notice Period” is defined in Section 3.5(b).



     “Nominating Equityholder” is defined in Section 2.1(a)(x).



     “Non-Equityholder Transferee” is defined in Section 3.1(a).



     “Non-Initiating Equityholder” is defined in Section 3.8(a).



     “Non-Preemptive Rights Securities” is defined in Section 3.7(c)(iv).



     “Non-Qualifying Equityholder” is defined in Section 2.9(c).



     “Non-Selling Equityholder” is defined in Section 3.3(a).



     “Notice of Issuance” is defined in Section 3.5(b).



     “Observer” is defined in Section 2.1(a)(iv)(D).



     “Observer Restrictions” is defined in Section 2.1(a)(xii).



     “Observer Rights” is defined in Section 2.1(a)(xii).



     “Open Market Transfer” means a Transfer that is made in accordance with Rule 144 under
the Act or in a public offering registered under the Securities Act.



     “Operating Agreement” means the Amended and Restated Operating Agreement of the LLC,
dated as of [___], 2008, as it may be amended, supplemented or otherwise modified from time
to time in accordance with its terms and the terms of this Agreement.



     “Original Operating Agreement” means the Operating Agreement of the LLC, dated as of
[___], 2008.



     “Original Shares” means, as applicable, any or all of the Sprint Original Shares, the
Strategic Investor Original Shares, the Intel Original Shares, the Eagle River Original Shares or
the BHN Original Shares.



A-8









 





     “Other Business Activities” means business activities of the Company that are (a)
approved by the Board in accordance with Section 2.6(b)(iii) and (b) not conducted by or through
the LLC or its Subsidiaries.



     “Other Sprint Debt Agreement” is defined in Section 2.13(i).



     “Par Value” means, with respect to shares of Class A Common Stock and Class B Common
Stock, $0.0001 per share, as adjusted for Recapitalization Events.



     “Parent” means, with respect to Sprint, [___]; with respect to Intel, [___];
with respect to Comcast, [___]; with respect to Google, [Google]; with respect to TWC,
[___]; and with respect to BHN, [Advance/Newhouse Partnership or, except for purposes of Section
4.1, Bright House Networks, LLC]; and, in each case, any successor (whether by merger, operation of
law or otherwise) thereto; provided that if any Equityholder effects a Spin-Off Transaction,
following such Spin-Off Transaction the Parent of the Person owning the Equity Securities and Units
that have been spun off will be deemed to be the Spin-Off Entity.



     “Percentage Interest” means, at the time of determination with respect to any Person,
the voting power represented by the Voting Securities then collectively held by that Person and its
Permitted Transferees and Permitted Designees (or, in the case of a Person that is not an
Equityholder, its Affiliates) as a percentage of the voting power attributable to all Voting
Securities then outstanding; provided that the Percentage Interest of Intel will be calculated as
though Intel did not hold any Existing Intel Shares (i.e., the Existing Intel Shares will be
counted in the denominator, but not in the numerator, in any calculation of Intel’s Percentage
Interest); and provided, further, that any Equity Securities issued by Clearwire under Section
10.1(b)(iv)(E), (F), (H) or (I) of the Transaction Agreement or in connection with the transactions
described in Items 2, 3, 4 and 8 of Section 6.13(c)(ii) or Item 4 of Section 10.1(b)(iv) of the
Clearwire Disclosure Schedules (as defined in the Transaction Agreement), including those issued
upon exercise, conversion or exchange of such Equity Securities will be deemed not to be
outstanding for the purpose of calculating an Equityholder’s Percentage Interest.



     “Permitted Designee” means, with respect to any Equityholder, any direct or indirect
wholly-owned Subsidiary of the Parent of such Equityholder.



     “Permitted Transferee” means, (i) with respect to any Equityholder, the Parent of such
Equityholder or a direct or indirect wholly-owned Subsidiary of the Parent of such Equityholder,
(ii) in the case of any Equityholder that is a member of the Strategic Investor Group, another
member of the Strategic Investor Group and (iii) in the case of Eagle River, any of the members of
Eagle River. Notwithstanding the foregoing, a Permitted Transferee of the Spinning Entity or any
of its direct or indirect wholly-owned Subsidiaries will not cease to qualify as a Permitted
Transferee as a result of a Spin-Off Transaction for so long as such Permitted Transferee remains a
direct or indirect wholly-owned Subsidiary of the Spin-Off Entity.



     “Person” means any individual, corporation, limited liability company, limited or
general partnership, joint venture, association, joint-stock company, trust, estate, unincorporated
organization, government or any agency or political subdivisions thereof.



A-9









 





     “Preemptive Right Pro Rata Share” is defined in Section 3.5(a).



     “Principal Equityholder” means, at any given time, whichever of Sprint, the Strategic
Investor Group or Intel holds the largest Percentage Interest; provided that in no event shall any
Equityholder be deemed the Principal Equityholder if it (together with its Permitted Transferees
and Permitted Designees) holds a Percentage Interest of less than 26%.



     “Proposed Transferee” is defined in Section 3.4(a).



     “Public Offering” means an underwritten public offering of securities of the Company
under an effective registration statement under the Securities Act or the sale of securities of the
Company on a bought-deal basis to a broker-dealer who intends to distribute the acquired
securities.



     “Public Offering Notice” is defined in Section 3.5(d)(i).



     “Qualifying Purchase” is defined in Section 3.7(b)(ii).



     “Qualifying Purchase Notice” is defined in Section 3.8(a).



     “Qualifying Purchase Securities” is defined in Section 3.8(a).



     “Reasonable Best Efforts” means the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances to achieve that result as expeditiously and
as reasonably as possible.



     “Recapitalization Event” means a stock split, reverse stock split, combination,
reclassification, recapitalization, stock dividend or similar transaction.



     “Registered” means a registration effected by preparing and filing a registration
statement in compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of that registration
statement.



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of
___, 2008, among the Company and each of the Equityholders, as amended from time to
time.



     “Related Party Transaction” means any transaction between the Company or any of its
Controlled Affiliates, on the one hand, and any Equityholder, any Affiliate of an Equityholder, or
any director, officer, employee or “associate” (as defined in Rule 12b-2 promulgated under the
Exchange Act) of the Company, an Equityholder or any Affiliate of an Equityholder, on the other
hand.



     “Representative” is defined in Section 4.7(c).



     “Response Notice” is defined in Section 3.3(b).



A-10









 





     “Restricted Entity” means, collectively, the Intel Restricted Entities, the Strategic
Investor Restricted Entities and the Sprint Restricted Entities.



     “Revolver” is defined in Section 2.13(a).



     “Revolver Quarterly Notice” is define in Section 2.13(a).



     “Sale Securities” is defined in Section 3.4(a).



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



     “Securities Holding Company” means any Investor Securities Holding Company or a Sprint
Securities Holding Company.



     “Securities Holding Company Stockholder” is defined in Section 3.12(a).



     “Selling Equityholder” is defined in Section 3.3(a).



     “Simple Majority” means a majority of the Directors (or relevant group of Directors)
(i) present at a meeting that has been duly called and at which a quorum was present at the time
any matter is being voted on or (ii) to the extent permissible under applicable Law, acting by
written consent.



     “Specified Percentage” means a percentage equal to 50% of the Percentage Interest of
Sprint as of the Adjustment Date.



     “Spinning Entity” is defined in the definition of “Spin-Off Transaction.”



     “Spin-Off Entity” is defined in the definition of “Spin-Off Transaction.”



     “Spin-Off Transaction” means any pro rata transfer by a Parent (such Parent, a
“Spinning Entity”) to its stockholders in a spin-off or similar transaction of all of the
capital stock of a Permitted Transferee of such Spinning Entity owning directly or indirectly all
of the Equity Securities and Units beneficially owned by such Spinning Entity and its Affiliates
(the “Spin-Off Entity”) that qualifies as a tax-free spin-off under Section 355(c) of the
Code; provided that in order to be treated as a Spin-Off Transaction the Spin-Off Entity must,




(a) if the Parent of Sprint is the Spinning Entity, also own directly or indirectly
all or substantially all of the wireless, voice and data services business conducted
by Sprint and its Controlled Affiliates using CDMA technology over 1.9 GHz PCS
spectrum (or successor operational or functional equivalent),




(b) if the Parent of Comcast, TWC or BHN is the Spinning Entity, also own directly
or indirectly all or substantially all of its and its Controlled Affiliates’ cable
division or business (or successor or operational or functional equivalent),



A-11









 






(c) if the Parent of Intel is the Spinning Entity, also own directly or indirectly
all or substantially all of the business comprising the mobility group of Intel and
its Controlled Affiliates as of the date of the Transaction Agreement (or successor
or operational or functional equivalent), or




(d) if the Parent of Google is the Spinning Entity, also own directly or indirectly
all or substantially all of its and its Controlled Affiliates’ search division or
business (or successor or operational or functional equivalent).



     “Sprint” is defined in the preamble.



     “Sprint Adverse Change of Control” means (i) the acquisition of or beneficial
ownership by a Restricted Entity, in each case on or after the date of the Transaction Agreement,
of securities representing 50% or more of the votes entitled to be cast in the election of
directors of Sprint or (ii) at any time prior to the later of (x) two years following the date on
which Sprint files a petition for reorganization under the Bankruptcy Code and (y) the date upon
which (1) an order is entered in any bankruptcy reorganization case of Sprint that confirms a plan
or reorganization or liquidation or (2) Sprint files a Chapter 7 liquidation case under the
Bankruptcy Code, a majority of the Sprint Designees cease to be individuals who (A) were Sprint
Designees prior to such Bankruptcy, (B) are then current or former employees of Sprint or any of
its Controlled Affiliates or (C) were directors of Sprint or any of its Controlled Affiliates
immediately prior to the Bankruptcy.



     “Sprint Affiliate Management Agreement” means an agreement entered into between Sprint
or its Affiliates and another Person for the purpose of engaging the other Person to both (i)
manage portions of a CDMA mobile wireless communications network using the Person’s own network
equipment and (ii) sell mobile wireless communications services as the agent of Sprint under the
Sprint designated brand.



     “Sprint Contribution” is defined in the recitals.



     “Sprint Designee” is defined in Section 2.1(a).



     “Sprint HoldCo LLC” is defined in the recitals.



     “Sprint Original Shares” means the number of shares of Common Stock acquired by Sprint
on the Effective Date in connection with the transactions contemplated by the Transaction
Agreement, as adjusted for Recapitalization Events.



     “Sprint Restricted Entity” means any of the following (including any Controlled
Affiliate of the following and any successor (whether by merger, operation of law or otherwise) to
any of the following or any of their Controlled Affiliates): AT&T Inc., Verizon Communications
Inc., and Verizon Wireless.



     “Sprint Securities Holding Company” means any entity (other than the Company or any of
its Subsidiaries) that (i) is taxable as a corporation for U.S. federal income tax purposes, (ii)
holds no material assets other than an equal number of Units and shares of Class B Common Stock,
(iii) at all times since its existence has held no material assets other than interests in Sprint,



A-12









 




assets transferred to or from the LLC (and earnings thereon), and an equal number of Units and
shares of Class B Common Stock and (iv) has conducted no business or other activities other than
those related to its ownership of such Units and shares of Class B Common Stock and interests in
Sprint.




     “Sprint Senior Debt Agreements” means, collectively, (i) the Credit Agreement dated as
of December 19, 2005, as amended, among Sprint Nextel Corporation, Nextel Communications, Inc.,
Sprint Capital Corporation, the banks and other financial institutions and lenders that are parties
thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent (or any successor agreement), (ii)
the Indenture dated as of October 1, 1998 among Sprint Capital Corporation, Sprint Corporation and
Bank One, NA, as trustee, together with all supplements thereto (or any successor agreement), (iii)
the Credit Agreement dated as of March 23, 2007 between Sprint Nextel Corporation and Export
Development Canada (or any successor agreement) and (iv) any other similar instrument (or series of
related instruments) evidencing or governing indebtedness for money borrowed or guarantees of
Sprint or any of its Subsidiaries in an amount equal to or greater than $100,000,000 (or any
successor instrument); provided that (x) any indebtedness borrowed or issued pursuant to a “base”
indenture or credit agreement with multiple facilities, series or tranches shall be aggregated for
purposes of this calculation, and (y) the amount of indebtedness for purposes of this calculation
under any revolving facility shall be the maximum amount available to be borrowed under such
facility.



     “Sprint Sub LLC” is defined in the recitals.



     “Standstill Equityholders” is defined in Section 3.7(d)(ii).



     “Standstill Period” is defined in Section 3.7(d)(i).



     “Strategic Investor” is defined in the preamble.



     “Strategic Investor Agreement” means that certain Strategic Investor Agreement entered
into among the Strategic Investors as of the date hereof, as amended from time to time.



     “Strategic Investor Designee” is defined in Section 2.1(a).



     “Strategic Investor Group” means, collectively, (i) each Strategic Investor and (ii)
each Permitted Transferee and Permitted Designee of a Strategic Investor.



     “Strategic Investor Observer” is defined in Section 2.1(a)(iv)(D).



     “Strategic Investor Original Shares” means the number of shares of Common Stock
acquired by the Strategic Investor Group on the Effective Date in connection with the transactions
contemplated by the Transaction Agreement, subject to adjustment (i) as set forth in Section 4.3 of
the Transaction Agreement, and (ii) for Recapitalization Events.



     “Strategic Investor Representative” means ___, who was appointed by the
Strategic Investor Group pursuant to the Strategic Investor Agreement to take all actions
designated herein to be performed by the Strategic Investor Group, as a group, in accordance with
the terms set forth in the Strategic Investor Agreement.



A-13









 





     “Strategic Investor Restricted Entity” means any of the following (including any
Controlled Affiliate of the following and any successor (whether by merger, operation of law or
otherwise) to any of the following or any of their Controlled Affiliates): AT&T Inc., Verizon
Communications Inc., Verizon Wireless, DirectTV, Inc., Echostar Communications Corporation and
Microsoft Corporation.



     “Subject Stock” is defined in Section 3.3(a).



     “Subsidiary” means, with respect to any entity,




     (i) any corporation of which a majority of the securities entitled to vote generally in
the election of directors thereof, at the time as of which any determination is being made,
are owned by such entity, either directly or indirectly, and




     (ii) any joint venture, general or limited partnership, limited liability company or
other legal entity in which such entity is the record or beneficial owner, directly or
indirectly, of a majority of the voting interests or the general partner or managing member.



     “Tag-Along Equityholder” is defined in Section 3.4(a).



     “Tag-Along Notice” is defined in Section 3.4(a).



     “Tax” or “Taxes” means any federal, state, local, or foreign taxes,
assessment, duties, fees, levies, imposts, deductions, or withholdings, including income, gross
receipts, ad valorem, value added, excise, real or personal property, asset, sales, use, license,
payroll, transaction, capital, net worth, franchise taxes, estimated, withholding, employment,
social security, workers compensation, environmental, utility, severance, production, unemployment
compensation, occupation, premium, windfall profits, transfer, gains, or other tax or governmental
charge of any nature whatsoever, imposed by any taxing authority of any country, and any
liabilities with respect thereto, including any penalties, additions to tax, fines or interest
thereon and includes any liability for Taxes of another person by contract, as a transferee or
successor, under Regulation Section 1.1502-6 or analogous state, local or foreign Law provision or
otherwise.



     “Transaction Agreement” is defined in the recitals.



     “Transaction Documents” means this Agreement, the Transaction Agreement, the Operating
Agreement, the Registration Rights Agreement, the Guaranty and the Ancillary Agreements.



     “Transactions Committee” is defined in Section 2.3(d).



     “Transfer” (including the terms “Transferring” and “Transferred”)
means, directly or indirectly, in one transaction or a series of related transactions, to sell,
transfer, assign, or similarly dispose of, either voluntarily or involuntarily, or to enter into
any contract, option or other arrangement or understanding with respect to the sale, transfer,
assignment, or similar disposition of, any Equity Securities beneficially owned by a Person or any
interest in any Equity Securities beneficially owned by a Person (including any arrangement to
provide another Person



A-14









 




the economic performance of all or any portion of such Equity Securities (including by means
of any option, swap, forward or other contract or arrangement the value of which is linked in whole
or in part to the value of such Equity Securities)); provided that a Transfer will not include (i)
any Hedging Transaction or (ii) any pledge, encumbrance or hypothecation of any Equity Securities
incurred or effected in connection with a financing transaction unless and until such Equity
Securities are Transferred as a result of a foreclosure or similar action, so long as the following
conditions are satisfied: (x) in connection with any such pledge, encumbrance or hypothecation,
the applicable Equityholder will cause the pledgee or other lienor with respect to such Equity
Securities to hold such Equity Securities subject to this Agreement (including, without limitation,
Section 3.3 and Section 3.4) and (y) without limiting the generality of the foregoing, in the event
of a foreclosure or similar action the pledgee or other lienor will be required to comply, and will
comply, in all respects with this Agreement (including, without limitation, by giving the notices
and taking the other actions required of a “Selling Equityholder” under Sections 3.3 and 3.4 prior
to any Transfer of such Equity Securities). For the avoidance of doubt, each party hereto agrees
that a Change of Control of a Parent, or sale or transfer of other securities of a Parent, will not
be deemed a Transfer of Equity Securities hereunder.




     “Transfer Entities” is defined in the recitals.



     “Transferee” means any Person to whom any Equity Securities are Transferred.



     “Transferor” means any Person that Transfers Equity Securities.



     “TWC” is defined in the preamble.



     “Unfilled Director Seat” is defined in Section 2.1(a)(x).



     “Unit” means a limited liability company unit in the LLC.



     “Voting Securities” means, at any time, any class of Equity Securities of the Company
that are then entitled to vote generally in the election of Directors.



     “WiMAX” means the IEEE 802.16e-2005 Wave 2 conforming technology standard, including
future evolution thereof (as defined by the WiMAX Forum).



     “WiMAX Forum” means the industry-led, non-profit corporation formed to promote and
certify compatibility and interoperability of broadband wireless products using industry standard
IEEE 802.16e-2005, including future evolutions thereof.



     “Wireless Broadband Network” is defined in the recitals.



     “Wireless Broadband Products and Services” means all types and categories of wireless
communications services and associated products (whether now existing or developed and implemented
in the future) that are designed as products and services to be offered as the products and
services of the Wireless Broadband Network.




A-15









 








Exhibit B




Initial Directors and Officers of the Company




B-1









 





Exhibit C




Terms of D&O Insurance




     The Company will maintain a minimum amount of total directors and officers liability insurance
of $150 million. These limits will have a minimum of $50 million dedicated to Side A personal asset
protection with drop down features. Coverage terms will be no less broad than what is currently
contained in the existing Clearwire directors and officers liability insurance program. Carrier
credit rating should be rated at A- or better. The securities retention should be no more than $2
million.




C-1









 








Exhibit D




Form of Compliance Certificate




     Pursuant to Section 2.13(b) of the Equityholders’ Agreement, dated as of ___, 2008 (the
“Equityholders’ Agreement”), by and among ___, the undersigned hereby
certifies as follows:



     1. The proposed Indebtedness or other action to be taken by the Company and its Subsidiaries
as set forth in the [Compliance Notice/Revolver Quarterly Notice] attached to this Certificate as
Exhibit A will not violate, cause a default or event of default under, or result in the imposition
of a lien on any assets or property of the Company or any of its Subsidiaries under, any of the
covenants under the Sprint Senior Debt Agreements (a correct and complete list of which is attached
to this Certificate as Exhibit B).



     2. All capitalized terms used in this certificate “Certificate” and not defined in
this Certificate will have the meanings assigned to those terms in the Equityholders’ Agreement.



Dated __________, 20__




	 	 	 	 	 
	 	SPRINT NEXTEL CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Executive/Financial Officer 	 
	 




D-1









 




Exhibit E


Form of Non-Equityholder Transferee Agreement


     Under the Equityholders’ Agreement, dated as of ___, 2008 (the “Equityholders’
Agreement”), by and among ___, the undersigned agrees that, having acquired
Equity Securities from ___ (the “Transferor”) as permitted by the terms of the
Equityholders’ Agreement, the undersigned will comply with, and assumes the obligations of the
Transferor under, Section 3.1 of the Equityholders’ Agreement with respect to the Transferred
Equity Securities. Capitalized terms used but not defined in this Agreement have the meanings
assigned to them in the Equityholders’ Agreement.

Listed below is information regarding the Equity Securities:



Number and Class of Equity Securities



     IN WITNESS WHEREOF, the undersigned has executed this Assumption Agreement as of ___
___, 20___.


	 	 	 	 	 
	 	[NAME OF TRANSFEREE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Acknowledged by:


E-1








 




Exhibit F


Assignment and Assumption Agreement


     Under the Equityholders’ Agreement, dated as of ___, 2008 (the “Equityholders’
Agreement”), by and among ___, ___ (the “Transferor”) assigns to
the undersigned the rights that may be assigned under the Equityholders’ Agreement with respect to
the Equity Securities being Transferred, and the undersigned agrees that, having acquired Equity
Securities as permitted by the terms of the Equityholders’ Agreement, the undersigned assumes the
obligations of the Transferor under the Equityholders’ Agreement with respect to the Transferred
Equity Securities. Capitalized terms used but not defined in this Agreement have the meanings
assigned to them in the Equityholders’ Agreement.

Listed below is information regarding the Equity Securities:


Number and Class of Equity Securities


     IN WITNESS WHEREOF, the undersigned has executed this Assumption Agreement as of ___
___, 20___.


	 	 	 	 	 
	 	[NAME OF TRANSFEREE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 
	Acknowledged by:

 	 
	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 




F-1










 




EXHIBIT G



FORM OF PARENT AGREEMENT


  This AGREEMENT, dated as of                      ___, 2008 (this “Agreement”), is made by [Parent
Corporation], a                      corporation (“Guarantor”), for the benefit of [NewCo Corporation], a
Delaware corporation (“NewCo”), [NewCo LLC], a Delaware limited liability company (“NewCo LLC”),
[Sprint], a                      (“Sprint”), [Eagle River Holdings, LLC], a Washington limited liability
company (“Eagle River”), [Intel], a                      (“Intel”), [Comcast], a                      (“Comcast”),
[Time Warner Cable] a                      (“TWC”), [Google Inc.], a Delaware corporation (“Google”), and
[BHN Spectrum Investments, LLC] a Delaware limited liability company (“BHN”) (together with their
respective Permitted Transferees and Permitted Designees, collectively, the
“Beneficiaries”).4


RECITALS



  [WHEREAS,                     , [a                      limited liability company] [a             
        
corporation] and a [direct][indirect] wholly owned subsidiary of Guarantor (together with its
Permitted Transferees and Permitted Designees, the “Guaranteed Party”, provided that no Securities
Holding Company (as defined in the Equityholders’ Agreement) shall be a Guaranteed Party from and
after the consummation of a Holding Company Transfer (as defined in the Equityholders’ Agreement)
pursuant to Section 3.12 of the Equityholders’ Agreement), has entered into that certain
Equityholders’ Agreement, dated as of                      ___, 2008, by and among NewCo Corporation,
[Sprint], [Eagle River Holdings, LLC], [Intel], [Comcast], [Google Inc.], [Time Warner Cable], and
[BHN Spectrum Investments, LLC]5 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “Equityholders’ Agreement”) and that certain Amended and
Restated Operating Agreement of NewCo LLC, dated as of                      ___, 2008, by and among NewCo
LLC, NewCo Corporation, [Sprint], [Intel], [Comcast], [Time Warner Cable] and [Bright
House]6 (as amended, amended and restated, supplemented or otherwise modified from time
to time, the “Operating Agreement”, and together with the Equityholders’ Agreement, the “Guaranteed
Agreements”).]7 Capitalized terms used but not otherwise defined herein will have the
meanings given them in the Guaranteed Agreements.




 



			
	4	 	The name of the Guaranteed Party should be removed from
this list.
	 
	5	 	The name of the Guaranteed Party should be removed from
this list.
	 
	6	 	The name of the Guaranteed Party should be removed from
this list.
	 
	7	 	This is the appropriate recital for all parties other
than Google. For Google, use the following:
	 
	[WHEREAS, Guarantor has entered
into that certain Equityholders’ Agreement, dated as of                      ___, 2008,
by and among NewCo Corporation, [Sprint], [Intel], [Comcast], [Time Warner
Cable], [BHN Spectrum Investments, LLC] and Guarantor (as amended, amended and
restated, supplemented or otherwise modified from time to time, the
“Equityholders’ Agreement” or the “Guaranteed Agreement”).] In addition,
“Guaranteed Agreements” should be made singular throughout.


G-1








 




  NOW THEREFORE, in consideration of the premises in this Agreement and in the Guaranteed
Agreements, Guarantor agrees as follows:


A G R E E M E N T


     1. Guarantee. Guarantor irrevocably and unconditionally guaranties the prompt and complete
performance of any and all obligations of [the Guaranteed Party]8 under the Guaranteed
Agreements (the “Guaranteed Obligations”). Guarantor further agrees to pay each Beneficiary for
any and all out-of-pocket expenses reasonably incurred by the Beneficiary in enforcing its rights
against the Guaranteed Party under this Agreement, including any and all reasonable attorneys’
costs and expenses incurred in connection therewith. To the extent that the Guaranteed Party fails
to perform any of the Guaranteed Obligations on a timely basis pursuant to the terms and conditions
of the Guaranteed Agreements, Guarantor will promptly cause the Guaranteed Party to perform such
Guaranteed Obligations or will perform such Guaranteed Obligations.


     2. Guarantee Absolute. The guarantee under this Agreement is and will be an absolute,
irrevocable and continuing guarantee of performance (and not merely of collection) of the
Guaranteed Obligations, when and as such Guaranteed Obligations are to be performed, and
Guarantor’s obligations and liabilities under this Agreement will not be released, reduced or
discharged except by the complete performance of all Guaranteed Obligations. Guarantor further
agrees that this Agreement will continue to be effective or be reinstated (if a release or
discharge has occurred), as the case may be, if at any time the Guaranteed Obligations or any
portion thereof will be rescinded or avoided (whether as a result of any bankruptcy or otherwise),
and any prior release or discharge of this Agreement will be without effect. Guarantor hereby
agrees to defer the exercise of any claims it has or may acquire against the Guaranteed Party in
respect of the Guaranteed Obligations, including rights of exoneration, reimbursement and
subrogation, until the Guaranteed Obligations have been completely performed.


     3. Waiver. The Guarantor expressly waives each and every defense that would otherwise operate
to eliminate, impair, condition or restrict the liabilities and obligations of a guarantor or
surety with respect to the Guaranteed Obligations, other than any defense that Guarantor would be
entitled to raise if Guarantor were the sole primary obligor of the Guaranteed Obligations (it
being understood and agreed that nothing set forth herein will be deemed to preclude the Guaranteed
Party from asserting any defense that it might have with respect to the Guaranteed Obligations).
Without limiting the foregoing, Guarantor hereby waives presentment, demand and protest; notice of
acceptance of this Agreement; notice of the creation of any Guaranteed Obligations, of any default
and of protest, dishonor, or other action taken in reliance hereon; all demands and notices of any
kind in connection with this guarantee of the Guaranteed Obligations; and all diligence in
collection or protection of or realization upon any of the Guaranteed Obligations. In furtherance,
and not in limitation, of the foregoing, each




 



			
	8	 	In the agreement entered into by Google replace
bracketed text with: [Guarantor’s Permitted Transferees and Permitted Designees
(collectively, the “Guaranteed Party”, provided that no Securities Holding
Company shall be a Guaranteed Party from and after the consummation of a
Holding Company Transfer pursuant to Section 3.12 of the Equityholders’
Agreement)]



G-2








 









of the Guarantor and the Guaranteed Party acknowledges and agrees that the Beneficiaries may
partially or fully release the Guaranteed Party or any one or more other guarantors from liability
with respect to the Guaranteed Obligations and that no action will impair, restrict, cancel or
otherwise limit any of Guarantor’s liabilities and obligations under this Agreement or the rights
of the Beneficiaries for performance of the Guaranteed Obligations by Guarantor.




     4. Acknowledgment. Guarantor is entering into this Agreement with the understanding that this
Agreement is a material condition to the Beneficiaries entering into the Guaranteed Agreements.



     5. Duration; Termination. This Agreement will take effect upon the date first above written
and will continue in full force and effect and be binding in accordance with its terms with respect
to a Guarantor until the date on which no Guaranteed Party of such Guarantor has a continuing
obligation under the Guaranteed Agreements. This Agreement is irrevocable.



     6. Miscellaneous.



     a. Controlling Law; Amendments. This Agreement will be governed by and construed and enforced
in accordance with the internal laws of the State of Delaware without reference to its choice of
law rules. This Agreement may not be amended, modified or supplemented except by written agreement
of the parties.



     b. Assignment; Successors in Interest. This Agreement may not be assigned by the Guarantor
without the prior written consent of each Beneficiary, which consent may be given or withheld by
any Beneficiary in its sole discretion; provided that Guarantor may assign this Agreement (i) to
the Spin-Off Entity of the Guaranteed Party in connection with a Spin-Off Transaction and (ii) to
any Person that has acquired beneficial ownership of more than 50% of the outstanding voting
securities of a Guarantor in a single transaction or a series of related transactions, as long as,
immediately following such assignment, the Guaranteed Party continues to be a direct or indirect
wholly owned Subsidiary of the Guarantor (or its successor). This Agreement will be binding on and
will inure to the benefit of the parties and their successors and permitted assigns, and any
reference to a party will also be a reference to the successors (whether by merger, operation of
law or otherwise) or permitted assigns of that party. This Agreement is entered into solely for
the benefit of the Beneficiaries and their respective successors and permitted assigns, and no
other Person may exercise any right or enforce any obligation under this Agreement.



     c. Severability. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction will, as to the jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of this Agreement, and any
prohibition or unenforceability in one jurisdiction will not invalidate or render unenforceable the
provision in any other jurisdiction. If permitted by law, each party waives any provision of law
that renders any provision prohibited or unenforceable in any respect.



G-3









 





     d. Addresses for Notices. All notices, communications and deliveries under this Agreement
will be provided as specified in Section 11.5 of the Operating Agreement.9



     e. Jurisdiction. No suit, action or proceeding with respect to this Agreement may be brought
in any court or before any similar authority other than in a court of competent jurisdiction in the
State of Delaware, and the parties to this Agreement submit to the exclusive jurisdiction of those
courts for the purpose of a suit, proceeding or judgment. Each party to this Agreement irrevocably
waives any right it may have had to bring an action in any other court, domestic or foreign, or
before any similar domestic or foreign authority. Each of the parties to this Agreement
irrevocably and unconditionally waives trial by jury in any legal action or proceeding (including
any counterclaim) in relation to this Agreement.



	 	 	 	 	 
	 	[Signature Page Follows]

 	 





 




			
	9	 	In the agreement entered into by Google this provision
must be amended because Google is not a party to the Operating Agreement.




G-4









 











  IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly executed and
delivered by its duly authorized officer as of the day and year first above written.



	 	 	 	 	 
	 	[GUARANTOR]

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




G-5